1. The transferee company should pay attention to whether the original shareholders of the transferor company have paid their respective contributions in full and on time; For the original contribution of the intellectual property rights of the transfer company, first find out which shareholder the intellectual property rights of the transfer company originally belonged to, whether the value of the intellectual property rights has been evaluated, and whether the shareholders who originally owned the intellectual property rights transferred the intellectual property rights to the original company name after the company registered with the intellectual property rights. The transferee company had better liquidate the transferor company and re-evaluate the intellectual property rights of the original company.
2. If it is found that the original shareholders have not paid their capital contribution in full and on time, the shareholders who have not paid in full shall be ordered to make up for it. After the revaluation of intellectual property rights, if the value is maintained or appreciated, there will be no problem for industry and commerce. If it depreciates, it must be supplemented by cash or physical objects or industrial technology property rights.
Scope of intellectual property investment target
The Company Law and the Sino-foreign Joint Venture Law clearly stipulate that the scope of investment of intellectual property rights is industrial property rights and non-patented technology (also known as proprietary technology). In China, industrial property rights include trademark rights and trademark rights. Therefore, it should be noted that the subject matter funded by intellectual property rights does not include copyright. In addition, the laws of foreign-invested enterprises also require that the industrial property rights or proprietary technology invested by foreign investors must meet one of the following conditions:
(1) can produce new products urgently needed in China or export marketable products; (2) It can significantly improve the performance and quality of existing products and improve production efficiency; (3) can significantly save raw materials, fuel and power.
2. Proportion of the amount of intellectual property rights to the registered capital.
The contribution of intellectual property rights needs to be calculated at a fixed price, and the fixed amount becomes a part of the registered capital after being approved by the promoters. The registered capital of a limited liability company is the minimum deposit for the company to undertake external debt liability. Therefore, in order to protect the interests of the company's creditors, the registered capital of the company shall not be reduced during the whole operation period of the company. Generally speaking, it is difficult for a technology to stay ahead for a long time, because the update cycle of technology is getting shorter and shorter. As time goes by, technology tends to depreciate, so the registered capital will actually decrease. As the technical level of China is obviously backward compared with developed countries, foreign investors often invest in patent rights, trademark rights and non-patented technologies in the establishment of joint ventures. With this advantage, they demand high pricing. Due to overvaluation, the book value of registered capital is often inconsistent with the actual value. In order to prevent the registered capital from shrinking, the laws of some countries do not allow intellectual property rights to contribute. China's "Company Law" and related laws and regulations also restrict the proportion of intellectual property investment in the registered capital, that is, the amount of investment with industrial property rights and non-patented technology at a fixed price shall not exceed 20% of the registered capital of the company; In the case of a high-tech joint stock limited company, the amount of contribution made by the promoters with industrial property rights and non-patented technology at a fixed price shall not exceed 35% of the registered capital of the company. In addition, "high-tech" should be identified or recognized by the competent departments of science and technology of the state and province (ministries and commissions).
Third, the choice of intellectual property investment and intellectual property transfer.
Newly established companies can use other people's intellectual property rights in two ways:
First, as a shareholder, the owner of intellectual property rights contributes to the company with intellectual property rights;
Second, the intellectual property owner transfers the intellectual property to the company.
The legal nature of capital contribution and transfer is different, and the legal consequences are also different. Knowing this, sponsors can make their own favorable choices according to how the company uses intellectual property rights. First of all, the act of investing in intellectual property is an investment act and a special act of intellectual property transfer. Specifically, it is an investment-oriented intellectual property transfer. This investment transfer is permanent. If the company is not dissolved and liquidated, investors may not withdraw this part of the property from the company. As the consideration of capital contribution, the investor exchanges the equity of the company's property, and the realization of the investor's economic interests is realized through the dividends brought by his equity every year. Of course, if the company does not operate well, investors may not get a penny. If the company is insolvent and declares bankruptcy, the company has the right to sell the intellectual property at a fixed price, and the proceeds will be used to pay off the company's debts. Therefore, as a shareholder, investment behavior needs to bear risks.
What we generally call "transfer" of intellectual property rights strictly includes the transfer of intellectual property ownership and the "use license" that only transfers the right to use intellectual property rights. This transfer is not for the purpose of investment. After the transferor or licensor transfers or licenses the intellectual property rights to the company, the company, as the transferee or licensee, shall pay the transferor or licensor the transfer fee or license fee. Therefore, the economic benefits of the transferor are realized by obtaining a certain price rather than a fixed investment dividend. Generally speaking, this transfer fee or use fee is collected from the company's cost and extracted by the transferor or licensor once or year by year. When the enterprise suffers losses, the enterprise should still collect the transfer fee or license fee from the enterprise cost, and the transferor or licensor can still benefit from the transfer or license of intellectual property rights under the contract conditions (such as sales volume and sales volume).
If the company is insolvent and bankrupt due to losses, the transferor or licensor may participate in the distribution of the company's remaining property as the creditor of the company without collecting all the transfer fees or use fees payable under this contract. In addition, since the investor of intellectual property rights is a shareholder of the company, it enjoys the beneficial rights exercised by shareholders for the company's interests and its own interests, such as voting rights at shareholders' meetings and the right to sue directors. However, the transferor or licensor of intellectual property rights cannot enjoy this right of shareholders of the company. After understanding the difference between intellectual property investment and transfer, the company sponsors will choose the scheme suitable for their own situation according to the specific situation. For example, in order to fully mobilize the enthusiasm of intellectual property investors and make them play a greater role in future product research and development, the company may require intellectual property owners to join the company in the form of intellectual property investment. Since the intellectual property owner has become a shareholder of the company, enjoying the benefits of successful operation and bearing the risk of operation failure, in this case, the intellectual property owner will naturally make every effort to play its role in technology and other aspects. If the owner of intellectual property is fully optimistic about his technology, market and the credit status of other company sponsors, then it is possible to obtain higher income than the transfer of intellectual property by asking for shares of intellectual property at a fixed price.
According to the Company Law of our country, the shareholders of a company share the benefits and bear the risks according to the proportion of their capital contribution in the registered capital. Because technology will depreciate over time, if the technology investor permanently distributes the company's income with a fixed proportion of the technology investment in the registered capital, it will also cause an imbalance in the distribution of interests to other investors. The transfer fee or license fee paid for technology transfer often takes the form of charging entry fee plus commission. As for commission, there are sales commission, sales commission and profit commission.