What are the risks of the holding company?

What are the risks of the holding company?

What are the risks of the holding company? Because the holding company occupies too many financial resources, its systemic risk is more harmful. Even if there is no risk in the system, it will spread to the system because of risks outside the system. So what are the risks of the holding company?

What are the risks of holding company 1 1? Legal risk of equity investment object and its prevention.

Risk point:

(1) State-owned enterprises cannot become general partners;

(2) Investing in informal private equity funds may involve criminal offences.

In recent years, there are more and more private equity (PE) and venture capital (VC), which are often established in the form of limited partnerships, and some state-owned enterprises also invest in them. The Company Law stipulates that, unless otherwise provided by law, a company shall not be a joint and several liability investor for the debts of the invested enterprise.

At the same time, the Partnership Enterprise Law stipulates that companies can reinvest in partnership enterprises, but wholly state-owned companies, state-owned enterprises, listed companies, public welfare institutions and social organizations may not become general partners. Therefore, a state-owned enterprise or a wholly state-owned company can only become a limited partner in a limited partnership, otherwise it will be deemed invalid.

Precautionary advice:

State-owned enterprises should invest strictly according to law. In-depth and detailed due diligence should be conducted on the investment object. If the investment object promises a guaranteed bottom and high returns, it is necessary to be vigilant.

Second, the legal risks and prevention in the process of equity investment

There are three main ways of equity investment: first, direct investment; The second is equity transfer; The third is to participate in capital increase and share expansion.

(1) Two legal risks in the establishment of direct investment, namely, false investment and non-monetary investment.

1, risk point of false capital contribution:

(1) Contributing shareholders may also "pay the bill" for other shareholders' false contributions;

(2) Those who lend funds to assist others in making false capital contributions shall also bear joint and several liabilities.

In judicial practice, creditors will treat all the shareholders of the debtor as defendants, especially the shareholders of state-owned enterprises with good reputation and many assets. The above provisions have increased the legal risks of enterprises investing abroad to set up companies and borrow funds, and related disputes may therefore increase substantially. In extreme cases, even if the state-owned enterprises invest in place, even if they only hold a small number of shares, they may bear the liability of 100%, and eventually face the risk of claiming compensation from shareholders with false capital contributions.

What are the risks of the holding company? 2. How to ensure the authenticity and legality of investment in real estate assessment?

To establish a joint venture or joint venture with a partner, the authenticity and legality of the property contributed by each investor (joint venture and shareholders) are related to the interests of each investor and the joint venture or company registered in the future. The so-called authenticity of invested property refers to the authenticity of property value, and legitimacy refers to the legitimacy of evaluation institutions and evaluation procedures. Concealing the true value of property by deception, falsely reporting the price and making false registration, and the contributing shareholders shall bear administrative and criminal responsibilities;

Other shareholders have civil liability to pay the difference, and they are jointly and severally liable; According to the severity and harmful consequences of false registration, the company may also bear administrative (fine) and criminal responsibility. That is to say, everyone will run the enterprise together, and the false investment of one investor will hurt all investors and bring legal troubles to the newly registered company, such as the pressure to make up the investment difference, the operational difficulties due to the lack of working capital and the damage to the company's commercial reputation.

In a joint venture, the parties to the joint venture are jointly and severally liable, and the property contributed by one party is untrue, which means that the compensation ability of the joint venture is reduced, and the debt repayment ability of one party is reduced, which of course means that the debt repayment share of the other party may increase, that is, the debt risk of the other party increases.

Whether the contributed property is legally feasible.

According to the laws of our country, physical objects, cash and industrial property rights can all be used as investment property, but we should pay attention to some legal risks when investing with these properties.

Collective land shall not be transferred without authorization.

Due to urban development and radiation, the collective land in the urban-rural fringe is cheap and has the potential for appreciation. Village economic organizations attract urban enterprises to invest in projects, set up factories and engage in joint ventures with collective land such as farmers' homesteads, private plots and feed fields. When the joint venture failed and it was necessary to pay off debts, it was discovered that collective land was not allowed to be transferred without authorization. The state monopolizes the primary market of land, collective land can only enter the secondary market after being expropriated by the state according to law, and the remaining amount can only be used to pay off debts after paying the state land income.

If the remaining amount is not enough to repay the debt, at this time, the joint venture partner (village economic organization) has no other property, and the city enterprise as a joint venture shall bear joint liability, and the debt balance shall be borne by the city enterprise, which means that the city enterprise should increase its share of debt repayment.

The right to use a trademark patent cannot be used as capital contribution property.

At present, the law does not clearly stipulate whether the right to use a trademark patent can be used as capital contribution property. Although some scholars advocate that the right to use trademarks and patents can be used as investment property, it is not feasible to operate in practice from the current laws (laws and regulations related to enterprise registration) and practice in China. Therefore, at present, the right to use the trademark patent right cannot be used as capital contribution property.

Ensure that the company's capital is sufficient.

At present, China's Company Law does not stipulate that shares can be used as the object of capital contribution, but in practice, especially in the restructuring of state-owned enterprises, shares have been used as capital contribution. Where shares are used as the capital contribution target, special attention should be paid to ensuring the authenticity, rationality and effectiveness of the share contribution in operation. If we want to consider that the value of shares is quite elastic relative to cash, and overestimating the value of shares will violate the principle of capital enrichment, then we should carefully evaluate the value of shares and standardize the evaluation, pricing and inspection procedures of share capital contribution.

The statutory capital verification institution shall issue a capital verification report on the capital contribution of the shares, which shall record the status of the capital contribution shares, the evaluation method of the share price, and whether the evaluation result is consistent with the number and face value of the shares in the proposed company. The contribution of shares shall become a necessary clause in the articles of association. The name of the investor, the shares of the investment target and their prices, and the investment data thus determined must be recorded in the articles of association, otherwise the share investment cannot be made.

In addition, the performance of share contribution should comply with the relevant provisions of share transfer, and it must be delivered and transferred, so that the contributed shares truly belong to the company under establishment. If the price of the paid-in shares at the time of the establishment of the company is obviously inconsistent with the price stipulated in the articles of association, the shareholders shall make up the difference to ensure the capital enrichment after the establishment of the company.

What are the risks of the holding company? 1. mortgage loan with high equity ratio.

Under the background of loose monetary policy, the operating conditions of listed companies are still not optimistic, and the growth rate of performance has also slowed down to a certain extent. At present, the financing environment in the capital market is more complicated. For most listed companies, limited financing channels are still a "challenge" they have to face. The relative shortage of funds in listed companies and the increasing demand for funds have stimulated the innovation of financing business and methods in financial markets, and many new financing methods have emerged one after another.

In addition, because the direct trading of shares held by controlling shareholders is subject to many restrictions, and shareholders' rights and interests are easy to circulate and have certain value, equity pledge, as an innovative enterprise financing method, provides a convenient financing channel for most listed companies.

High equity pledge is easy to cause abnormal transfer of control rights of listed companies. For example, when the company is not well managed, the signal released by high proportion pledge to the market and investors is often negative, and the market's doubts and negative emotions of investors will lead to the decline of stock value. In order to protect their own interests, the pledgee has the right to ask the pledgee to supplement the pledge to reduce potential risks.

If the controlling shareholder does not have enough funds to supplement the pledge, or provide other collateral to banks and securities companies, it will face compulsory liquidation. At this time, if the liquidation share is large, it will lead to the risk of equity pledge, which in turn will lead to the risk of control transfer.

Second, the controlling shareholder

Improper equity pledge by controlling shareholders will not only bring risks and losses to minority shareholders, but also lead to the risk of control transfer. Equity pledge refers to a pledge activity in which the equity owner borrows necessary funds from banks, securities and other institutions in order to maintain the normal operation of the company, taking the company's equity as the subject matter.

After the controlling shareholders of listed companies pledge their shares, they still retain the rights corresponding to their shares, including control rights and management rights. The pledgee can only exercise the income right of the equity, that is, the property right. According to the different ways of pledge repurchase, equity pledge can be divided into on-site pledge and off-site pledge. The former is mainly operated by securities companies, which is characterized by the fact that participants can directly complete all trading processes on the floor, and it is also the main pledge method at present.

Prior to this, the pledgor and pledgee of listed companies will generally apply to China Securities Depository and Clearing Corporation for pledge registration, that is, off-exchange equity pledge, and its main operators are mainly banks, trusts and other institutions. Compared with on-site pledge, its characteristics are that it cannot be directly listed and traded, and it lacks risk control over the underlying equity, so it is risky.

In listed companies, the general meeting of shareholders is the highest authority, which is composed of all shareholders and votes on major issues of the company. The transfer of control right means that the acquirer obtains the control right of the target company through agreement transfer and direct merger, so that the control right of the company is transferred.

There are two ways to transfer the control right of an enterprise: paid transfer and free transfer: paid transfer is to achieve the purpose of transfer by signing an acquisition agreement and buying and selling funds; Free transfer increases the government-led factor, and the control right of an enterprise is transferred to another company through the intervention of government administrative means.

Third, the transfer of control.

For the controlling shareholder, the transfer of control is to transfer the control of the company to others. For enterprises, changing the controlling shareholder can inject new vitality into the enterprise, save the enterprise in time when the business declines, improve the business situation of the enterprise and help the enterprise return to the right track. In different corporate governance models, the distribution of control rights is also different, that is, shareholders can gain different degrees of control rights by virtue of their shareholding ratio, and then gain additional benefits by controlling the management rights of enterprises.

For the controlling shareholder, the control right will mainly produce two different effects: one is positive and the other is negative. On the positive side, the controlling shareholder uses the right of control to supervise and manage the company's performance reasonably, and in this process, the controlling shareholder can also obtain higher income. On the other hand, after the equity pledge, they still have control over the company, and they are likely to use control to occupy the company's resources.