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Text / legal director of Court grams group general counsel commercial enterprises use the reorganization process of mergers and acquisitions to expand the company size,all lower operating costs, increase their market competitiveness.M & A in general, there are two models : One is the use of the overall acquisition;One is used to control objectives through the acquisition of the target company shares for the purpose.In actual operation process is often due to procedural flaws or legal entities exist, so that enterprises can achieve the purpose of mergers and acquisitions.with the transfer of shares in the form of M & A process,Elements of procedures on the transfer of shares of the elements and entities are inconsistent with the relevant laws and regulations.lead to the transfer of shares void, the situation is even occur from time to time.In the process of equity transfer agreement to transfer more, the transfer of shares in China is no special lawIn practice most of the "Company Law" and the relevant departments and local rules and regulations as the basis,this case is related to the integration and use it as the basis for the process of the transfer of shares of the legal issues involved.[Basic] case on December 28, 1995.Shanghai, a real estate operating companies (hereinafter referred to A Company) and the Shanghai real estate operating companies (hereinafter referred to company B) jointly established a limited liability company.Phase II development of commercial land in Changning District of Shanghai, the proportion of investment accounted for 90% of company B,A company with 10%, with a limited liability company established by the industrial and commercial registration law.C B shareholders of the company for one company to a limited liability company in the investment company B,C funds invested companies accounted for 35% of total investment in a limited liability company.February 13, 1996 C and D companies signed a "Letter of Intent transfer of shares".April 1 two sides signed the "Agreement on the transfer of shares," agreed :C in a limited liability company owned 35% of the company shares, the company received C D companies are entrusted,re-acquisition of a limited liability company 10% of the equity of the two mergers, the Company's limited liability company owned 45% of the equityAfter consultation with the prices assigned to D Company 25.5018 million yuan.July 26, the two sides signed the "supplementary agreement on the transfer of shares," the company agreed to pay part of the transfer of D,C completed in early August by controlling all the statutory procedures, and for all the shareholders will be held in early August.to clarify the status of shareholders in a limited liability company, duties, obligations and the re-allocation of shares.D C after the company had promised to pay for the transfer of shares of the company 15 million yuan.at the agreed time frame for the holding of limited-liability companies, to Shanghai No. 1 Intermediate People's Court proceedings.After reviewing the case,C Shanghai No. 1 Intermediate People's Court that the company will have to transfer the shares in the limited liability company,not available in the form of limited liability companies to transfer their ownership requirements, according to the judgment signed equity transfer agreement invalidD Company C returned from the transfer of 15 million yuan paid by the company's equity and interest payments.[1] The legal issue.The main equity transfer agreement agreement with the legal issues in this case C D Company's equity transfer agreement on the main agreement,is not a valid agreement for the disposal of the shares to a limited liability company, Company A and Company B is appropriate only in the main Georgia,Only two shareholders of limited-liability companies : Company A and Company B.B. C is a shareholder-owned company B, C company of its right to transfer the shares.C Company B in a limited liability company is not dispose of the shares.The equity transfer agreement violation of the laws and restrictions on the main contract for the effect can be determined or revocation of the contract.Restrictions on the transfer of shares in the main agreement also includes joint-stock limited-liability company shareholders equity transfer,"Company Law" in accordance with Article 147 of China stipulates : "The shares held by the sponsors.three years from the date of the establishment of the company shall not be transferable. "" company directors, supervisors,Managers should be held to declare the company's shares.period in office, and shall not be transferable. "Its aim is to prevent companies who used his position to facilitate access to the company's internal information,Insider engaged in unfair equity transactions, thereby causing damage to other non-permanent directors, supervisors, managers of the legitimate rights and interests of shareholders.Furthermore laws, regulations, policies and regulations is not permitted to engage in profitable activities in the main, the shares of the transferee shall become shareholders.For example, public servants of the state.Laws and regulations to a ban on the right of the main provisions of the transaction, the transfer of shares to make such regulations not inconsistent with the main contract.If shareholders are not allowed to transfer shares of the company.Therefore, in view of the transfer of shares should be part of the review,The main equity transfer agreement to verify whether the above, the transfer of shares to avoid the resulting agreement invalid.2.procedures and the process of the transfer of shares of entities in this case there are legal issues in this case, C and D Company signed an agreement on the transfer of shares.only in a limited liability company held by the shareholders meeting, proposed to transfer ownership share of the company to D,without a shareholder vote, shareholders have not yet formed,procedures are not in line with the law will ultimately lead to an equity transfer invalid.And based on Article 35 of the "Company Law" :"shareholders could be funded or part of the transfer of all of its investors. shareholders to transfer their shareholders other than the investor,must be approved by a majority of all shareholders; shareholders should not consent to the assignment of the investor's purchase of the transfer.If investors do not buy the transfer, as agreed to the transfer. funded by the shareholders agree to the transfer, under the same conditions.funded a right of pre-emption against other shareholders. "From which we can see thatshareholders to transfer their shares between each other, not to make restrictive procedures.to shareholders other than the investor requires a majority of all shareholders,under the same conditions that other shareholders are not in favor of pre-emption cases,to be outside the main shareholders to transfer their ownership.Companies should be made in this case C to D company with limited liability company agreed to the transfer of ownership of its shareholders,Signed by all the shareholders; give up the right of pre-emption should be made to all shareholders, a written statementIn addition C. companies should provide shareholders to be convened in accordance with the law of evidence, including the convening of the shareholders noticealso agreed to provide all the shareholders to amend the company's charter signed the agreement.If it is agreed to the transfer of state-owned shares should be made relevant to the transfer of its certification.The price of shares in the transfer of state-owned assets should also be related to the management or approved for the record.to the location of the property sector began trading transactionsadvertise through competitive bidding or after the expiry of the transfer agreement.Ownership transfer to follow the practice in two ways : One is the first element fulfills the above procedures and entities,determine the transfer agreement signed with the assignee, the assignee of the new company's shareholders.The way the two sides not too risky, but signed the transfer agreement should be signed before the transfer of shares of the draft,agreement on the transfer of shares related matters, and the two agreed that the blame for the breach of responsibility and commitment;Another case cited in the same way with this paper, the assignor and the assignee first signed equity transfer agreementLater in by the company to carry out the transfer process and entities,But in this way, there is the possibility of transfer of shares achieved, is a great risk of the assignee.Generally, the assignee must first pay part of the transfer, such as the transfer of shares is not possible,assignee must bear the risk of recovery of the money, including litigation and enforcement.Third, the transfer of shares should pay attention to other aspects of the legal issues in the actual process of the transfer of shares.In addition to the problems involved in this case, there are still many restrictions on the transfer of shares, including laws and regulations.the company's charter and contracts, such as the transfer of shares my view Ltd. Article 144 of the "Company Law" :"shareholders to transfer their shares in the stock exchange to be established in accordance with the law. "Article 146 provides :"bearer shares transferestablished in accordance with the law and stock exchange by the shareholders include the transfer of stock delivered to the transferee that the effect occurred. "Article 148 provides :"The state agency authorized by law to transfer their investment in shares held.also allowed to buy shares held by other shareholders. approval of the purchase of shares or the transfer of authority, management, law,administrative regulations separately. "" management of state-owned property rights of enterprises ".not only in the transfer of state-owned shares in the process, there are strict requirements, transaction, approval proceduresassignee of the relevant conditions, etc. are made, it is in the process of the transfer of shares.not only equity transfer agreement to review issues, but also to address the many legal issues related to the review, and make strict checksensure the smooth transfer of shares.
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