Simon Says: Can preemptive right stop any transfer of shares?

Published
10/05/2017 by

This is the thirty-second in a weekly series of legal advice provided in a short and entertaining story format.

 

每周轻松有趣法律常識故事系列 - 第32篇

 

 

Keywords: Company Law, Preemptive Rights, Transfer of Shares

 

关键词:公司法、优先购买权、股票转让

 

 

Can preemptive right stop any transfer of shares?

 

西门说法:优先购买权能阻止任何股票转让吗?

 

Jack, Dan and Com own DJ.com, one of the largest e-commerce corporation based in Beijing. Com owns 80% of the shares and is the legal representative, and Jack and Dan each own 10%. They are all directors of DJ.com.

 

Dan、Jack 和Com拥有DJ.com,这是北京最大的电子商务公司之一。Com拥有80%的股份,是法定代表人,而Jack和Dan各自拥有10%的股份。他们都是DJ.com的董事。

 

Jill, a graduate from the Central Academy of Drama, is now a prominence Chinese actress. Both Jack and Com fell in love with her charm. Jill eventually chose Jack, because their names both started with a J and they are from the same province. They decided to marry each other, and Com, of course, was unhappy.

 

来自中央戏剧学院Jill现在是一位杰出的中国女演员。Jack和Com都爱上了她的魅力。Jill最终选择了Jack,因为他们的名字开头都是J,他们还来自于同一个省。他们决定结婚,当然,Com很不高兴。

 

Whatever Jack proposed, Com refused in the capacity as legal representative. After 3 months, Jack decided to resign his directorship and to leave DJ.com, to avoid Com. Jack decided to sell his 10% of equity to Dan at 600 million Yuan, and he sent an email to Com and Dan to notify them. Of course, Dan was furious because that meant in seek of true love, he lose completely in this battle.

 

无论Jack提出什么建议,Com都以法定代表人的身份拒绝了。3个月后,Jack决定辞去董事职务,离开DJ.com,以避开Com。Jack决定将他10%的股权以6亿元的价格出售给Dan,他给Com和Dan发了一封电子邮件通知他们。当然,Com很愤怒,因为这意味着在这场逐爱战斗中,他完全失败了。

 

“I order you to stay in the company. I have preemptive rights and you shall not sell your shares to Dan.” A fuming Com said.

 

“我命令你留在公司里。我有优先购买权,你不能把你的股份卖给Dan。”Com说道。

 

“You can buy my shares then, if you don’t want me to sell them to Dan. Otherwise, you have no right to stop me from selling my shares.” Jack said.

 

“如果你不想让我把股份卖给Dan,那么你就买我的股票。否则,你无权阻止我出售我的股票。”Jack说道。

 

Does Com have any right to stop Jack from selling his shares?

 

Com有权利阻止Jack出售他的股票吗?

 Simon Says - Episode 32: Can preemptive right stop any transfer of shares?

 

Prof Simon Says:

西门教授说法:

 

No, in the absence of any articles of association of DJ.com provides the contrary intention, Com cannot use his preemptive rights to stop Jack from selling his shares to Dan as Dan is a shareholder of DJ.com too. A shareholder of a limited liability company, like DJ.com, may transfer all or part of his equity interests to another shareholder. Preemptive rights work against a third party only.

 

不,如果DJ.com的公司章程没有另行规定,那么Com不得以其优先购买权阻止Jack将他的股票卖给Dan,因为Dan本身就是DJ.com的股东。有限责任公司(如DJ.com)的股东可以将其全部或部分股权转让给另一个股东。优先购买权只针对第三方。

 

In general, preemptive rights allow shareholders of the company to buy shares before outsiders, in order to maintain stability in the company. In the case of a transfer of shares among shareholders, Com may not stop Jack from selling his shares to Dan.

 

一般来说,优先购买权允许公司的股东在非股东购买之前优先购买股票,以维持公司的稳定。在股东转让股份的情况下,Com无法阻止Jack将他的股份卖给Dan。

 

China’s Company Law (2013)

 

Article 71 The shareholders of a limited liability company may transfer allor part of their equity interests among themselves.A shareholder proposing to transfer its equity interests to a non-shareholdershall obtain the consent of more than half of the othershareholders. The shareholder shall inform the other shareholders of theproposed equity transfer in writing and seek their consent. Failure toreply within 30 days from receipt of the written notice shall be deemed asconsent to the proposed transfer. Where more than half of the othershareholders do not consent to the proposed transfer, the nonconsentingshareholders shall acquire such equity interests, failing whichthey shall be deemed to have consented to the proposed transfer.

 

Where the shareholders consent to the proposed transfer, the othershareholders shall have pre-emptive right to acquire such equity interestson similar terms. Where two or more shareholders intend to exercisetheir pre-emptive rights, they shall negotiate and determine theacquisition ratio. Where the negotiation fails, the shareholders shallexercise their pre-emptive rights based on the ratio of capitalcontribution at the time of the proposed transfer.

 

Where there are provisions in the articles of association of the companyfor transfer of equity interests, such provisions shall prevail.

 

《中华人民共和国公司法》(2013年修正)

 

第七十一条 有限责任公司的股东之间可以相互转让其全部或者部分股权。

 

股东向股东以外的人转让股权,应当经其他股东过半数同意。股东应就其股权转让事项书面通知其他股东征求同意,其他股东自接到书面通知之日起满三十日未答复的,视为同意转让。其他股东半数以上不同意转让的,不同意的股东应当购买该转让的股权;不购买的,视为同意转让。

 

经股东同意转让的股权,在同等条件下,其他股东有优先购买权。两个以上股东主张行使优先购买权的,协商确定各自的购买比例;协商不成的,按照转让时各自的出资比例行使优先购买权。

 

公司章程对股权转让另有规定的,从其规定。

 

 

For more about this or to contact Professor Simon Choi at www.acmeardent.comsimonhkchoi@163.com, +86 13823677853 or by WeChat: simonhkchoi. 

 

ACME Ardent's Simon Choi WeChat QR Code

 

 

Simon Choi

About the Author: Professor Simon Choi

Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at simonhkchoi@163.com or +86 13823677853.

 

FEATURED EVENTS & PROMOS See All

Shenzhen's 2017 Chirstmas Markets

Join our Christmas Markets on the 23rd & 24th December for an event not to be missed! Visit Gateway One Shopping Mall in Seaworld, this month (entrance on the 3rd floor) for a spectacular Christmas market filled with shopping stalls from well-est...


Reserve your Christmas Turkey at George and Dragon
Reserve your Christmas Turkey at George and Dragon

Get your Christmas turkey incl. stuffing, gravy, and cranberry sauce at George & Dragon starting at 980RMB. Prefer to dine on h...

Make Your Christmas More Merrier @ Hilton Shenzhen Shekou Nanhai
Make Your Christmas More Merrier @ Hilton Shenzhen Shekou Nanhai

Merry Christmas! Christmas season is coming! The hotel is featured with special decoration, bringing you to the Neverland. Sav...