1. What is an equity gift?
The so-called equity donation is a way of equity transfer in which shareholders who enjoy equity transfer their equity to others for free. Because the Company Law doesn't clearly stipulate the content of equity donation, scholars generally regard equity donation as a kind of free equity transfer.
2. What are the special legal provisions for equity donation?
1. Shareholders should also be allowed to exercise the preemptive right when giving shares.
Paragraph 2 of Article 7 1 of the Company Law stipulates that when a shareholder transfers its equity to the outside world, other shareholders shall have the preemptive right with the consent of the shareholder under the same conditions. The preemptive right here applies to equity transfer, but how to determine the scope of "transfer" here? There is no clear stipulation in the company law. It is generally believed that the transfer here includes both paid transfer and free transfer, such as gift, equity swap and enforcement.
2. After the equity donation agreement is notarized, you shall not go back on your word at will.
Undoubtedly, paid equity transfer should be the mainstream form of equity transfer. However, the free transfer of equity is also a way for shareholders to exercise their right to dispose of equity. Shareholders can completely transfer their shares by donation. Shareholders' heirs can also obtain shareholders' equity through inheritance.
In practice, it should be noted that if the shareholders unilaterally transfer the equity by way of donation, the donee can express his intention of accepting or giving up according to his own will, and the donee will transfer the equity with the acceptance of the equity donation; The donee gives up the equity donation, and the equity is not transferred. However, if the shareholder (donor) has reached an equity donation agreement with the donee, which has been notarized by a notary office, according to Article 88 of China's Contract Law: "If the donor fails to deliver the donated property, the donee may ask for delivery." Therefore, shareholders (donors) shall not go back on their word on the grounds of not paying or not paying the consideration.
3. The legal procedures for equity transfer are applicable to equity donation.
According to Article 71 of the Company Law: "Shareholders of a limited liability company may transfer all or part of their shares to each other. Shareholders' transfer of equity to persons other than shareholders shall be approved by more than half of other shareholders. Shareholders shall notify other shareholders in writing to agree to the transfer of their shares. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity; Do not buy, as agreed to transfer. Under the same conditions, other shareholders have the priority to purchase the equity transferred with the consent of shareholders. If two or more shareholders claim to exercise the preemptive right, their respective purchase proportions shall be determined through consultation; If negotiation fails, the preemptive right shall be exercised in accordance with their respective investment proportions at the time of transfer. Where there are other provisions on equity transfer in the articles of association, such provisions shall prevail. "
Legal basis: Article 71 of the Company Law of People's Republic of China (PRC). Shareholders of a limited liability company may transfer all or part of their shares to each other.
Shareholders' transfer of equity to persons other than shareholders shall be approved by more than half of other shareholders. Shareholders shall notify other shareholders in writing to agree to the transfer of their shares. If other shareholders fail to reply within 30 days from the date of receiving the written notice, they shall be deemed to have agreed to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the transferred equity; Do not buy, as agreed to transfer.
Under the same conditions, other shareholders have the priority to purchase the equity transferred with the consent of shareholders. If two or more shareholders claim to exercise the preemptive right, their respective purchase proportions shall be determined through consultation; If negotiation fails, the preemptive right shall be exercised in accordance with their respective investment proportions at the time of transfer.
Where there are other provisions on equity transfer in the articles of association, such provisions shall prevail.