2. If the shareholders who fail to fulfill their capital contribution obligations evade their obligations and debts through the equity transfer agreement, the creditors may demand to bear the debts.
3. The equity transfer agreement stipulates that all debts before the equity transfer shall be borne by the original shareholders.
In the equity transfer of a limited liability company, in order to determine the equity value, the transferor and the transferee often entrust an audit evaluation institution to audit and evaluate the assets of the target company, including creditor's rights and debts, before signing a contract to determine the actual price of the equity. In the trial practice, the debts of the target company include real debts that the transferor has clearly known, and potential and hidden debts such as secured debts and tort debts that the transferor should know or not know and cannot predict. In order to prevent the transferor from deliberately concealing the debt of the target company to increase the value of the company's assets and thus obtain inflated equity transfer funds, both parties to the equity transfer contract often set the debt risk burden or guarantee clause of the target company, stipulating that the transferor is responsible for repaying the debt of the target company before the equity transfer.
1. The equity transfer does not affect the external liabilities of the company, and the debts of the company before and after the transfer shall be borne by the company.
In view of the legal provisions of the "limited liability" of the company's shareholders, shareholders, as investors, shall bear limited liability to the company to the extent of their capital contribution, but shall not be jointly and severally liable for the company's debts. The transfer of the company's equity held by shareholders will not reduce the company's property, nor will it affect the company's continued existence.
As far as creditors are concerned, the target company is a debtor, independent of shareholders, and bears debts according to law, which does not constitute mutual constraints with the transfer of shareholders' equity. Generally speaking, regardless of whether the shareholders transfer their equity, the company's liabilities are borne by the company itself, regardless of whether the shareholders and equity transfer.
Although corporate debt and equity transfer do not restrict each other, in the process of corporate equity transfer, the transferor should distinguish the different situations of corporate debt and handle it legally and reasonably based on the principle of good faith. The transferor has the obligation to inform, and should fully and truthfully disclose the relevant information of the debt of the target company, so that the transferee can fully predict the risk, make the choice whether to accept it or not and make a reasonable value judgment.
If the transferor intentionally conceals the truth and fails to disclose the existing liabilities or potential liabilities to the transferee in a true and comprehensive way, it is a violation of the obligation of information disclosure and the obligation of the transferor to represent and guarantee the company's debts, and it needs to bear corresponding liabilities for breach of contract according to law.
legal ground
Article 18 of the Supreme People's Court's Provisions on the Application of Several Issues stipulates that if the shareholders of a limited liability company fail to perform or not fully perform their capital contribution obligations to transfer their shares, the transferee knows or should know that the company requests the shareholders to perform their capital contribution obligations, and the transferee is jointly and severally liable for this, the people's court shall support it; Where the creditors of the company bring a lawsuit to the shareholders in accordance with the provisions of the first paragraph of Article 13 of these Provisions, and at the same time request the transferee to bear joint liability for this, the people's court shall support it.