Equity transfer agreement is a contract with equity transfer as its content, and equity transfer is the performance of debts under the contract. The effective time of the equity transfer agreement is inconsistent with the effective time of the equity transfer, and the equity transfer takes effect after the agreement takes effect. The main content of the equity transfer agreement is the transfer of equity, and its essence is to dispose of all its equity. Article 35 of the Company Law restricts the transfer of shares to people other than shareholders, and restricts the disposition of shares by shareholders.

Matters needing attention in signing equity transfer agreement

The conclusion of the equity transfer agreement shall comply with the provisions of the Contract Law and the Company Law. In addition to complying with the legal restrictions on equity transfer stipulated in the Company Law, if the articles of association have special restrictions and requirements on shareholders' equity transfer, shareholders shall not violate the provisions of the articles of association when concluding an equity transfer agreement.

In view of the many uncertainties in the process of equity transfer, we should pay attention to the following aspects when signing the equity transfer agreement:

1, contract entity

In the transfer of equity, the subject of the transfer of equity should be the shareholders of the company, and the transferee can be the shareholders of the original company or a third person other than the shareholders. In practice, some shareholders sign equity transfer contracts in the name of the company, which will cause confusion among the parties to the contract. In addition, if the transferee is a company, it needs to consider whether it needs to be approved by the shareholders' meeting; If it is a natural person, it is necessary to check whether a one-person limited liability company is registered.

2. Resolutions or opinions of the shareholders' meeting or other shareholders.

Shareholders shall solicit the opinions of other shareholders before transferring their shares to the outside world. Only when other shareholders give up the preemptive right under the same conditions can they be transferred to a third party other than shareholders. At the same time, we need to pay attention to the performance of other legal pre-procedures, otherwise it will have invalid legal consequences. In addition, both the resolutions of the shareholders' meeting and the opinions of individual shareholders need to form written materials to prevent other shareholders from going back on their word afterwards and causing disputes.

3. Pay attention to the pre-approval procedure

Some equity transfer contracts also involve the approval of the competent authorities, such as the transfer of state-owned equity or equity of foreign-funded enterprises.

4. Clarify the ownership structure

The transferee shall learn more about the ownership structure of the company where the shareholders transfer their shares by consulting the articles of association, business license, tax registration certificate, resolutions of the board of directors and shareholders' meeting of the company where the shareholders transfer their shares.

5. The transferee shall carefully analyze the operating status and financial status of the company where the equity transfer is located.

① Investigate the production and operation of the enterprise: a. Whether the production and operation activities of the enterprise are normal; B. verify the supply contract or order of the enterprise.

(2) Analyze the financial situation of the enterprise: require the enterprise to provide audit reports and recent financial statements for the past two years to verify the asset scale and liabilities of the enterprise; Verify how the owner's equity of the enterprise is formed; Judging the profitability and solvency of the enterprise;

③ Investigation on enterprise tax payment.

6. The transferee shall try its best to know the relevant information of the transferred equity to determine whether there are any defects.

① Attention should be paid to whether the transferred equity has the defect of false capital contribution, that is, the actual price of non-monetary property is obviously lower than the subscribed capital contribution.

② Attention should be paid to whether the transferred equity has the defect of insufficient capital contribution (default), that is, the shareholder's capital contribution is not in place in full and on time.

③ Attention should be paid to whether the transferred equity is pledged.

7. The equity transfer agreement shall require the counterparty to make certain commitments and guarantees.

① The transferee shall require the transferor to make the following commitments and guarantees:

A. Ensure that the documents mentioned in the activities related to this equity transfer are complete, authentic, legal and effective;

B. Ensure the integrity of the transferred equity without any guarantee, mortgage or other third party rights;

C, ensure that its subject qualification is legal, and it has the right and ability to sell shares;

D. If the equity transfer contract involves the land use right, the transferor shall ensure that the land use right and house ownership it owns are obtained and legally owned through legal channels, and there are no tax problems such as arrears of land use right transfer fees, and it can be freely transferred according to law;

E the transferor shall guarantee to the transferee that there are no other liabilities except the listed liabilities, and reach relevant agreements with the transferee on the debt commitment;

F. Ensure that any litigation or arbitration arising from facts before the equity delivery date shall be borne by the transferor.

② The Transferor shall require the Transferee to make the following commitments and guarantees:

A, to ensure that its subject qualification is legal, and it can independently undertake the contractual obligations or legal liabilities arising from the transferee's equity;

B, guarantee to pay the transfer price as agreed in the contract.

8, should be timely for industrial and commercial change registration procedures.