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Is the private share agreement valid?

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Is the private share agreement valid?


        

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  • 2024-06-18 22:00:01

    It mainly depends on the identity of shareholders and the company's articles of association. For example, the shareholders explained the equity transferred at the board meeting and half of them approved it. The equity transfer signed by shareholders in private is supported by Chinese laws. China's laws do not protect the shares transferred privately without the shareholders' explanation.

    1、 Share transfer of a limited liability company: According to 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 shall be subject to the consent of more than half of the other shareholders. The shareholder shall notify the other shareholders in writing of the transfer of their shares for consent. If the other shareholders fail to reply within 30 days from the date of receiving the written notice, it shall be deemed that they agree to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the equity to be transferred; If no purchase is made, it shall be deemed as consent to the transfer.

    2、 Share transfer of a joint stock limited company: According to the Company Law, shares held by shareholders can be transferred according to law. A shareholder shall transfer its shares at a lawfully established securities exchange or in other ways as prescribed by the State Council. The transfer of bearer shares becomes effective when the shareholder delivers the shares to the transferee. The shares of the Company held by the promoters shall not be transferred within one year from the date of establishment of the Company. The shares issued before the public offering of shares by the Company shall not be transferred within one year from the date when the shares of the Company are listed and traded in the stock exchange.

    Circumstances that lead to invalid equity transfer of the Company: 1. Violation of the Articles of Association. According to the Company Law, if the Articles of Association provide otherwise for the transfer of the Company's equity, such provisions shall prevail. (1) The restrictive provisions of the Articles of Association on equity transfer shall not conflict with the mandatory provisions of laws and administrative regulations. (2) The restrictive provisions of the Articles of Association shall not prohibit shareholders from transferring their equity. If there is such a provision, it is invalid because it violates the basic principle of free transfer of equity and deprives shareholders of their basic rights. 2. In case of violation of the provisions of the Company Law and the Articles of Association does not provide for the transfer of equity, the provisions of Article 72 of the Company Law shall apply to the transfer of equity. If a shareholder transfers its equity in violation of its provisions, it shall be deemed invalid. 3. Violation of special regulations According to the Interim Measures for the Administration of the Transfer of State owned Property Rights of Enterprises, the transfer of State owned equity needs the approval of the competent department. The approval authority is generally SASAC or local government. If the transfer of state-owned shares is not approved, it will also be deemed invalid.

    To sum up, have your questions been answered!

    Legal basis

    Article 137 of the Company Law 【 Share transfer 】 Shares held by shareholders can be transferred according to law.

    Article 138 of the Company Law [Place of Share Transfer] A shareholder shall transfer his shares at a legally established securities exchange or in other ways as prescribed by the State Council.

    Article 139 of the Company Law [Transfer of registered shares] Registered shares shall be transferred by the shareholders by endorsement or other means prescribed by laws and administrative regulations; After the transfer, the company shall record the name and domicile of the transferee in the register of shareholders.
    No change in the register of shareholders as prescribed in the preceding paragraph shall be registered within 20 days prior to the convening of the shareholders' meeting or within 5 days prior to the base date on which the company decides to distribute dividends. However, if the law provides otherwise for the registration of changes in the register of shareholders of a listed company, such provisions shall prevail.

    Article 71 of the Company Law of the People's Republic of China [Equity Transfer] 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 shall be subject to the consent of more than half of the other shareholders. The shareholder shall notify the other shareholders in writing of the transfer of their shares for consent. If the other shareholders fail to reply within 30 days from the date of receiving the written notice, it shall be deemed that they agree to the transfer. If more than half of the other shareholders do not agree to the transfer, the shareholders who do not agree shall purchase the equity to be transferred; If no purchase is made, it shall be deemed as consent to the transfer. Under the same conditions, other shareholders have the preemptive right to purchase the equity transferred with the consent of shareholders. If two or more shareholders claim to exercise the preemptive right, they shall negotiate to determine their respective purchase proportion; If the negotiation fails, the preemptive right shall be exercised according to the respective proportion of capital contribution at the time of transfer. If the articles of association have other provisions on equity transfer, such provisions shall prevail.

    Bar***

    2024-06-18 22:00:01

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