股权激励方案落地执行
十年股权整理解决方案落地实施

At present, it is only clear that the protection of the investment rights and interests of dormant shareholders in accordance with the equity holding agreement is not clear about the legitimate shareholder status of dormant shareholders and whether they can enjoy shareholder rights and interests. dormant shareholders can only claim their rights and interests through the proxy holder, and cannot directly claim to the company, so there is a certain risk; The risk of infringement of the rights and interests of dormant shareholders mainly comes from nominal shareholders, and we can constrain them through relevant provisions

隐名股东权益防范

Prevention of the rights and interests of dormant shareholders

01在股权代持协议中明确股东权利的行使方式,比如名义股东必须按照隐名股东的意愿行使股东权利,并提前出具行使股东权利的必要手续,表决权,分红权,增资优先权等必须通过隐名股东的书面同意等.

In the equity proxy agreement, the method of exercising shareholder rights is specified, such as that nominal shareholders must exercise shareholder rights according to the wishes of dormant shareholders and provide necessary procedures for exercising shareholder rights in advance. Voting rights, dividend rights, capital increase priority rights, etc. must be approved in writing by dormant shareholders

02通过协议约定将名义股东对股份享有的财产权排除在外,如名义股东发生陷入债务,离异等情形时,代持股权不能作为其项下财产进行处分,以防名义股东利用其名下股权侵害隐名股东的财产权益或者当名义股东出现意外等情况时,隐名股东不得不卷入遗产继承的纠纷案件中,才能拿回自己的财产权,以及名义股东遭遇债务纠纷,代持股份被执行等风险.

02. By agreement, the property rights enjoyed by the nominal shareholders in the shares shall be excluded. If the nominal shareholders fall into debt, divorce, or other situations, the equity held on behalf of them cannot be disposed of as their property, in order to prevent the nominal shareholders from using their equity to infringe on the property rights and interests of the dormant shareholders or in case of accidents or other situations, the dormant shareholders must be involved in disputes over inheritance in order to recover their property rights, And the risks of nominal shareholders facing debt disputes and proxy holding of shares being executed

03在隐名股东与名义股东签署股权代持协议的同时,可要求名义股东将代持股权质押给实际出资人,这样一来,当名义股东出现因陷入其他原因导致代持股权被采取强制措施时,由于代持股权已被设定质押,名义股东的处分权受到限制,可在一定程度上保障实际出资人的优先受偿权.

At the same time as the dormant shareholder signs the equity proxy agreement with the nominal shareholder, the nominal shareholder can be required to pledge the proxy equity to the actual investor. In this way, when the nominal shareholder is forced to take compulsory measures due to other reasons, as the proxy equity has already been pledged, the disposal rights of the nominal shareholder are limited, which can to some extent protect the priority compensation rights of the actual investor

04约定违约责任,在代持协议中,对名义股东损害隐名股东利益的情况加以约定,并设置严格的违约责任,从而起到对名义股东的威慑、约束作用,降低隐名股东权益被侵害的风险.

04 stipulates the liability for breach of contract. In the proxy agreement, it is stipulated that the situation where the nominal shareholder damages the interests of the dormant shareholder, and strict liability for breach of contract is set up, thereby serving as a deterrent and constraint to the nominal shareholder and reducing the risk of infringement of the rights and interests of the dormant shareholder

隐名股东权益防范

Prevention of the rights and interests of dormant shareholders

另外,目前法律没有明确规定隐名股东能否以其系实际出资人为由对抗该第三人的执行请求,如果有名义股东的债权人获法院生效判决并提出执行请求,法院和其他权力机关可以依法查封上述股权,并将其用于偿还代持股人的债务,从而给隐名股东的财产带来很大的风险.

In addition, there is currently no clear provision in the law on whether dormant shareholders can use their actual contributors as a defense against the execution request of the third party. If a creditor of a nominal shareholder receives an effective judgment from the court and requests execution, the court and other authorities can legally seal the above-mentioned stock rights and use them to repay the debt of the proxy shareholder, thereby posing great risks to the property of the dormant shareholder

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