Lawyer Hu Yafei of Zhejiang Ciyong Law Firm replied:
Performance shares refer to the shares given by the founder or shareholders of the company to a third party for free according to the agreement. Those who hold "dry shares" are called dry share shareholders. Unlike common stock, dry stock shareholders only have the right to share out dividends and have no ownership.
1030 10 Article 35 stipulates: "Shareholders shall pay dividends in proportion to their paid-in capital contribution; When the company increases its capital, the shareholders have the right to subscribe for the capital contribution in proportion to the paid-in capital contribution. However, all shareholders agree not to pay dividends according to the capital contribution ratio or give priority to capital contribution according to the capital contribution ratio. "
030 10 Paragraph 2 of Article 3 stipulates that "the shareholders of a limited liability company shall be liable to the company to the extent of their subscribed capital contribution; Shareholders of a joint stock limited company shall be liable to the company to the extent of the shares subscribed by them.
Lawyer Hu Yafei analyzed;
On the one hand, cadres appear to motivate employees. On the other hand, some intangible assets can not be located at the time of industrial and commercial registration. When starting a business, you can invest in non-monetary forms, such as machinery and equipment and intellectual property rights. In addition, there are monetary funds, namely cash shares. However, in the industrial and commercial registration, it is required that the shares of intangible assets can be "denominated in money and can be transferred according to law", such as individual patent rights. However, some intangible assets, such as management experience, social resources, unique marketing channels, goodwill and technology, cannot be invested. In order to solve this problem, there are performance stocks. In addition, the founder of the company will also give shares to relatives and friends.
There are many forms of performance shares, such as rights shares, management shares, technology shares, information shares, employee shares, parent company shares and so on.
Performance shares can be donated to employees or partners. Passerby A can hold it as long as it is approved by the shareholders' meeting. But there is no such thing as a free lunch. If you want to get performance stocks, you have to have "dry goods". Specifically, if it can help the company in terms of knowledge and technology, management skills, information provision or supply and marketing channels, it can obtain shares by signing a share grant agreement after approval by the shareholders' meeting.
The acquisition and existence of performance shares are usually based on a valid share grant agreement. The validity of the equity grant agreement belongs to the agreement between shareholders and is equally binding on shareholders as the establishment agreement. The contents of the equity grant agreement can also be reflected in the articles of association. As the shareholders have not actually contributed capital, the confirmation of the shareholders' qualification is completely subject to the Share Transfer Agreement. If the Share Grant Agreement can be revoked, invalid or cancelled, the shareholders of dry shares will naturally lose their qualifications. The rights and obligations of performance shares, such as the right to claim dividends and voting rights, are all determined by agreement, but the obligations of shareholders, especially external obligations, are the same as those of ordinary shareholders, on the grounds that shareholders' registration is open.
But generally speaking, if the shares received by the shareholders of dry shares are defective shares, the transferee of shares shall also bear the obligation of capital contribution. But generally speaking, if some of them are defective shares and some are normal shares, then the donated shares will be recognized as normal shares first, and only when they are insufficient will they be recognized as defective shares.
Generally speaking, the acquisition and existence of performance shares is based on a valid share grant agreement.
Shareholders who change their shareholders and register with the Industrial and Commercial Bureau become full shareholders and fully enjoy the rights and obligations of shareholders.
When making the shareholding plan, the following factors should be considered:
1 is to consider the stability of employees or management, technical backbone, business backbone and other personnel.
2. Is the performance right?
3. It is necessary to specify clearly when the performance shares can be cancelled. For example, if you explicitly agree to leave your job, of course, you will lose the qualification to perform shares. If there is no clear agreement, it may bring trouble to the company, because employees have the dual identity of workers and shareholders after obtaining the performance shares. Labor relations and shareholder relations are two different legal relations. Is it because the transferee of performance shares, that is, the employee is incompetent that the employer terminates the labor relationship? Even if the employee voluntarily proposes to terminate the labor relationship, it will not lead to the inevitable denial of shareholder status. Even if the employee who owns the issued shares no longer works for the company, he is still a shareholder of the company and can still exercise shareholder rights such as dividend rights according to the provisions of the Company Law of People's Republic of China (PRC). Therefore, this aspect should be clearly agreed according to the actual situation of the company.
For outstanding talents, especially management elites and technical backbones, the company should give generous rewards. Through equity incentive, outstanding talents can find a "sense of belonging" in the company and stimulate their talents and potential to the maximum extent.
5. It should be combined with the confidentiality responsibility of trade secrets, non-competition, post responsibility and performance appraisal.
Related question and answer: What do you mean by performance shares? Performance shares refer to shares given away by joint-stock companies for free. Generally used as a reward for company sponsors; Sometimes it is also used to give away employees or attract some influential people. The share delivery must be approved by the board of directors, because it involves shareholders' rights and interests, which leads to the reduction of shareholders' rights and interests. If the donated dry shares exceed the paid-in capital of the company, diluted shares will be formed, which will reduce the stock price and earnings per share. If the company's retained earnings are converted into dry shares, it is equivalent to converting the retained earnings of shareholders' liabilities into company assets.
Characteristics of blue chip stocks
Performance shares do not involve shareholders' control of the company, but incentives for employees; At the same time, only the dividend right reduces the risk of the enterprise, even if it is not successful, it will not cause fatal harm to the company; In addition, the operation of performance shares is very simple, and it can be solved within the enterprise by signing an agreement or contract without going through the industrial and commercial part. All these factors make performance shares widely used in society.
Performance shares only have the right to pay dividends, and the grantee can generally only get relatively short-term benefits. Once you don't understand the operating efficiency of the enterprise, it will put pressure on the cash flow and operating risk of the enterprise.