- The subject of the contract
In the equity transfer , the subject of the equity transfer should be the company’s shareholder, and the transferee may be the original company’s shareholder or a third party other than the shareholder. In practice, some company shareholders sign equity transfer contracts in the name of the company , which will cause confusion among the contracting parties. In addition, if the transferee is a company, it is necessary to consider whether it needs to be approved by the shareholders’ meeting ; if it is a natural person, it is necessary to check whether it has registered a one-person limited liability company.
- Resolutions or opinions of the shareholders meeting or other shareholders
Shareholders should seek the opinions of other shareholders before transferring the equity to other shareholders. Under the same conditions, other shareholders can only transfer to a third party outside the shareholder when they give up their right of first refusal. At the same time, it is also necessary to pay attention to the implementation of other statutory pre-procedures, otherwise there will be invalid legal consequences. In addition, whether it is the resolution of the shareholders meeting or the opinions of a single shareholder, written materials must be formed to prevent other shareholders from going back and forth and causing disputes.
- Concerns about the pre-approval process
Some equity transfer contracts also involve the approval of the competent authorities, such as state-owned equity or equity transfer of foreign-funded enterprises.
- Clear ownership structure
The transferee shall have a detailed understanding of the shareholding structure of the company of the transferring shareholder by reviewing the company’s articles of association, business license, tax registration certificate, resolutions of the board of directors, resolutions of the shareholders’ meeting and other necessary documents.
- The transferee should carefully analyze the operating and financial status of the company where the transferred equity is located
Inspect the production and operation of the enterprise, whether the production and operation activities of the enterprise are normal, verify the supply contract or order of the enterprise; analyze the financial status of the enterprise, require the enterprise to provide the audit report of the past two years and recent financial statements, and verify the scale of assets and liabilities of the enterprise , to verify how the owner’s rights and interests of the enterprise are formed, to judge the profitability and solvency of the enterprise; to investigate the taxation situation of the enterprise.
- The transferee should try to understand the relevant information of the transferred equity to determine whether there is any defect
Attention should be paid to whether the transferred equity has the flaw of false capital contribution, that is, the actual value of the non-monetary property is significantly lower than the subscribed capital contribution; Shareholders’ capital contributions are not paid on time and in full; attention should be paid to whether the transferred equity has the situation of equity pledge ;
- The equity transfer agreement should require the contract to make certain commitments and guarantees to the other party
The transferee shall require the transferor to make the following commitments and guarantees: ensure that the documents mentioned in the activities related to the transfer of equity are complete, authentic, legal and valid; ensure that the equity transferred is complete and no guarantee is set , mortgage and other third-party rights and interests; ensure that its subject qualification is legal, and has the right ability and capacity to transfer equity; if the land use right is involved in the equity transfer contract, the transferor shall ensure that the land use right and house ownership it has are It has been legally acquired and legally owned, there is no tax arrears such as land use transfer fees, and it can be freely transferred in accordance with the law; the transferor shall guarantee to the transferee that there are no other liabilities other than the listed debts, and shall agree on Relevant agreements have been reached with the transferee on the issue of debt commitment; it is guaranteed that the transferor will be responsible for any litigation or arbitration arising from the facts before the date of equity delivery .
The transferor shall require the transferee to make the following commitments and guarantees: ensure that its subject qualifications are legal and can independently undertake the contractual obligations or legal liabilities arising from the transfer of equity; and ensure that the transfer price is paid according to the contract. The industrial and commercial change registration procedures should be completed in a timely manner