Paid equity transfer should undoubtedly belong to the mainstream form of equity transfer. But free equity transfer is also a way for shareholders to exercise equity punishment. Shareholders can transfer their equity by way of gift. Shareholders heirs can also obtain shareholders equity through inheritance .
In practice, it should be noted that if shareholders unilaterally transfer their equity by way of gift, the grantee can make an acceptance or waiver according to their own wishes. The grantee accepts the equity gift and the equity transfer occurs; People gave up the equity grant, and no equity transfer occurred. However, if the shareholder (the donor) and the beneficiary have reached the Equity Grant Agreement and have been notarized by a notary, according to Article 188 of the Contract Law of China: It has the nature of social welfare and moral obligation such as disaster relief and poverty alleviation. If the donor does not deliver the donated property, the recipient may request delivery of the gift contract or a notarized gift contract. Therefore, the shareholder (the donor) shall not regret on the grounds of gratis or unpaid consideration.
According to Article 71 of the Company Law: Shareholders of a limited liability company may transfer all or part of their equity to each other. The transfer of equity by a shareholder to a person other than a shareholder requires the approval of a majority of other shareholders. Shareholders shall Equity transfer matters notify other shareholders in writing to seek consent. If other shareholders fail to respond within 30 days of receiving the written notice, they are deemed to agree to the transfer. If more than half of the other shareholders do not agree to the transfer, the disagreeing shareholders shall purchase the transfer. Those who do not purchase shall be deemed to have agreed to transfer. Equity that has been agreed to be transferred by shareholders, under the same conditions, other shareholders have the right of first refusal. If two or more shareholders claim to exercise the preemptive right, the respective purchase proportion shall be determined through negotiation; If i t fails, the right of pre-emption shall be exercised in accordance with the respective capital contribution ratio at the time of the transfer. If the articles of association of the company provide otherwise for the transfer of equity, the provisions shall prevail.
72 Article 72 (2) of the Company Law stipulates that, when a shareholder transfers its equity to the outside, if the shareholder agrees to transfer, other shareholders have the right of first refusal under the same conditions.
The application of the preemptive right here is the transfer of equity, and the scope of the transfer here specifically determines how the Company Law does not explicitly stipulate. It is generally believed that transfers here include paid transfers as well as free transfers, such as gift, equity replacement, and enforcement.
Gift is an act of free transfer, because the recipient does not need to pay the consideration, and there is no equivalent condition, so usually the right of preemption cannot be used at this time. However, by analyzing the purpose of the shareholder s preemptive right protection and the purpose of the gift behavior, some scholars believe that in the case of equity gift, other shareholders should be allowed to exercise the shareholder s preemptive right. The reason is that shareholders pre-emptive rights take the primary goal of maintaining a trust relationship between shareholders within the company, and the purpose of equity grants is:
Under the former purpose, allowing shareholders to exercise their preemptive right not only respects the human nature of shareholders, but also the interests of grantees can be properly protected. Because, after the granting shareholder obtains the consideration paid by the priority shareholder, the consideration can be transferred to the beneficiary (of course, the increase in the consideration is one-time, and from the long-term relationship, the benefit of the beneficiary may still be affected Damage, but this should be seen as a choice between the value of the conflict between the values of the legislation given the proper protection of the grantee rather than the result of full protection). Of course, the determination of the purchase consideration at this time is a complex and important issue that can be determined by the parties through consultation or by market evaluation. If the gift is for the latter purpose, it is obviously more important to allow other shareholders to exercise the right of priority purchase to maintain the company s humanity.