Equity is essentially a shareholder's right to control or dominate the company and its affairs, and it is the general name of the legal status and rights enjoyed by shareholders based on capital contribution. Specifically, it includes income right, voting right, right to know and other rights. 1. Form of equity transfer: There are two ways for shareholders of a limited liability company to transfer their capital contribution: first, shareholders transfer their equity to other existing shareholders, that is, intra-company equity transfer; Second, the shareholders transfer their equity to other investors other than the existing shareholders, that is, the equity transfer outside the company. These two forms are somewhat different in terms of conditions and procedures. (1) Internal share conversion: It is an internal behavior among shareholders to transfer their capital contributions to each other according to law. According to the relevant provisions of the Company Law, it can take legal effect by changing the articles of association, the register of shareholders and the capital contribution certificate. Once there is a dispute between shareholders, it can be used as a basis. (2) Transfer of shares to a third party: When a shareholder transfers his capital contribution to a third party other than the shareholder, it is an external transfer of the company. In addition to changing the Articles of Association, the register of shareholders and related documents according to the above provisions, it is also necessary to go through the registration of change at the administrative department for industry and commerce.
For the transfer of shares to a third party, the provisions of the company law are relatively clear: Article 72 of the new company law stipulates:
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.
This is the basic principle of the company's external transfer of capital contribution. This principle includes the following special contents: first, the right to vote is based on the principle of number of people. China's company system pays more attention to the human factor of a limited company, so what is decided here is the number of people, not the proportion of capital contribution held by shareholders. Two, the basic number of other shareholders is more than half of the shareholders except the transferor. 2. The actual operation mode of equity transfer:
In practice, the implementation of equity transfer can be carried out in two ways. One is to fulfill the above procedural and substantive requirements first, and then sign an equity transfer agreement with the determined transferee, so that the transferee can become a shareholder of the company. In this way, both parties have little risk, but before signing the equity transfer agreement, they should sign the draft equity transfer, stipulate the relevant matters of equity transfer, and stipulate the liability for breach of contract, that is, the liability for contracting negligence; Another way is that the transferor and the transferee sign the equity transfer agreement first, and then the transferor fulfills the procedural and substantive conditions in the company. However, this method can not achieve the purpose of equity transfer, and it is very risky for the transferee. Generally speaking, the transferee must pay part of the transfer money first. If the equity transfer cannot be realized, the transferee will bear the risk of recovering the money, including litigation and execution.