Illicit collect equity invests: Item of 13 kinds of priority is analytic! (contain case to analyse)

The means of the content that know the inside story counterpoises and exercise still depends on whether does illicit collect investor have authority election director, if investor has authority election director, criterion a lot of finance affairs of the company and the right that management information can carry exercise trustee and if investor cannot be in the board of directors,obtain; accreditation any chairs, investor can be retreated and beg next, requirement to company accreditation observer, observer but conference of board of directors of attend as a nonvoting delegate, requirement company offers the company such as conference record, announcement, resolution to provide the data of trustee, but without voting authority or power to make decisions. Again, in trading outside the condition, investor can ask to be signed and issue in the company normally " administrative power certificate " in, specific mention expressly the company is all any documents that submit to trustee all should be handed over to investor, investor has authority to undertake with respect to the major management item of the company and administrative layer communicate and to table a proposal, company management layer should be annual the progress that be communicated with investor regularly and reports major plan.

The limitation that 3 investor know the inside story counterpoises

1, limitation of contest course of study

Stem from what the market competes to think, the investor that company meeting limit urges to know the inside story counterpoises is not the direct competitor of the company, namely this investor not with the company advocate competition of business Wu existence concerns, or the trustee that its are not the company that concerns with company presence competition or partner.

2, confidential obligation

Stem from commercial secret to think, after through exercise know the inside story in investor authority obtained company information, the company can ask investor assumes strict confidential obligation. Besides, the company also can restrict investor to examine attribute information of company height classified.

3, right of investor know the inside story is preferential sexual forfeiture

After investor contains the know the inside story of preferential sex to counterpoise to be able to be in a company to appear on the market commonly, stop namely, at the appointed time illicit collect investor will be relied on with other public investor appear on the market the exposure information of the company, the authority of know the inside story that its ask lost preferential sex namely.

The provision of common authority of know the inside story in 4 solid Wu

It is normally in transaction file, authority of know the inside story and consult authority, independent audit authority (if have) agree at the same time, be like:

After this agreement is signed, company should will the following forms for reporting statistics or file, inside formulary time the newspaper sends investor, build archives keep for future reference at the same time:

(After monthly of I) daily all previous ends inside 20 days, offer monthly management Zhang (contain balance sheet, profit to express) ;

(After quarter of Ii) daily all previous ends inside 30 days, offer quarterly management Zhang (contain watch of balance sheet, profit and cash flow meter) ;

(After Iii) every calendar year ends inside 45 days, the year management Zhang that provides a company (contain watch of balance sheet, profit and cash flow meter) ;

(After Iv) every calendar year ends inside 120 days, the year audit Zhang that provides a company (contain flow meter of watch of balance sheet, profit, cash, possessory rights and interests annotations of fluctuant watch, financial forms for reporting statistics) .

The company should create great obligation or the item that produce major effect possibly to the company, inform investor in time.

If investor is put to any information have doubt, can fall in the premise that gives a company reasonable announcement, examine data of company relevant finance affairs, know state of company financial operation. Outside dividing company year audit, investor has office of accountant of appoint to a position of authority proper motion to have audit to the company.

During investor regards a company as partner, investor can reach affiliated company exercise to check power to the company, include but not the financial Zhang book that be confined to examines company and affiliated company and record.

6 sell right jointly

Sell right jointly (Co-Sale Right) , be before showing target company is issued publicly first, if virgin partner or partner of other common stock transfer equity to tripartite, the price that investor partner has authority to be reached with tripartite according to the partner that plans to sell equity and agreement participate in this to trade in, it is according to its in target company hold a scale at present to transfer stock to tripartite.

The 1 legal basis that sells right jointly

Our country " company method " the regulation that did not counterpoise about selling jointly, makes extraordinary agreement is made over with respect to equity between the shareholder that sells authority is target company actually jointly. Accordingly, in " company method " fall without clear illicit circumstance, sell authority clause is in current China to legal frame falls and do not have the obstacle of materiality jointly, it is OK to cast financing both sides agree to this in investing an agreement, revise company constitution accordingly.

The 2 system action that sell right jointly

"Sell right jointly " clause and " preferential buy right " the clause is the provision that when selling equity in the light of father, uses. If father satisfies the premise requirement that sells equity, investor is no good make preferential buy right while, investor can sell authority in order to come true jointly through exercise. The main effect that sells right jointly has the following at 2 o'clock:

The 3 exercise that sell right jointly

1, exercise condition

The exercise condition that sells right jointly is the equity that virgin partner drafts to make over not by the company other shareholder basis is preferential buy authority entirely, and will sell to protocol alienee. Below the circumstance such as this, each investor partner has authority exercise this right, participate in the protocol of virgin partner to sell in proportion, but the virgin shareholder that must offer equity in the deadline introversion that the agreement sets sends effective and written announcement. The equity number that should notify Ying Zaiming investor to partner hopes to sell in this second change trains lets. Once the announcement is given out be regarded as the effective exercise that sells right jointly namely.

2, realize a mechanism

(1) crowded law

crowded law is to show the premise that changing the 3rd person to plan to buy equity number falls, the equity amount that investor can draft to make over according to virgin partner and virgin partner oppose the scale of some total equity amount, sell what oneself hold some company equity. crowded law won't affect those who buy the 3rd person of equity to buy an amount, the one part that is will virgin partner only sells stock advantageous position transferred investor.

(2) addition law

Addition law the equity amount that next virgin partner place sell is fixed, of place addition is the equity amount that investor sells, investor is salable scale and crowded way are same, the equity that the equity that tripartite place acquires finally sells for virgin partner + the equity that investor sells.

(3) sell in proportion

Selling in proportion is to point to in plan to sell the case with equity fixed amount falls, investor, virgin partner according to hold a scale severally to sell equity.

3, the limitation that counterpoises all right

On solid Wu operation, if virgin partner position is stronger,perhaps stem from the consideration of fairness of the those representing capital that cast be in harmony, virgin partner connects regular meeting to set limitative requirement to selling the exercise of authority jointly, these conditions basically include:

The first, virgin partner can be in the agreement the additional requirement that partner of extraordinary agreement investor does not get exercise to sell right jointly. If virgin partner is investing the equity that 10% less than of company sell inside 12 months after complete a business transaction is finished, and the company equity that retains its hold is in 60% above, do not affect its to run a company, do not spark sell an item jointly, investor partner does not get exercise to sell right jointly.

The 2nd, investor partner often asks virgin partner assumes the obligation that informs equity makes over matters concerned, answer relatively to it, virgin partner can agree inside reasonable after informing service investor of partner time, investor partner was not made clear denotive, regard as abandon selling right jointly.

The 3rd, as a result of force majeure, court court decision, successive wait for a reason to need virgin partner to transfer corresponding equity to the 3rd person, investor partner has no right to ask exercise sells right jointly.

What authority item sells jointly in 4 practice is common state

The company is issued publicly first in eligible capital market before appearing on the market, in do not violate this agreement below the circumstance of other item, when virgin partner sells its support some parts or total equity, investor has authority exercise preferential sell right, otherwise father must not be made over.

The investment that holds the post of one exercise to sell right jointly square (abbreviation " sell an authority invest jointly square " ) feasible the equity amount that makes sell right jointly is: The amount × that transfers the equity that just plans to make over should sell an authority invest jointly what just hold some company equity ÷ at the appointed time (sell an authority invest jointly each what just hold some company equity the sum at the appointed time + make over square place

Virgin partner sells with respect to afore-mentioned equity matters concerned should inform investor ahead of schedule, investor should reply within proper time whether exercise sells right jointly, if invest,just did not reply within afore-mentioned deadline father, regard as abandon exercise this second sell right jointly.

7 oppose booth thin provision

Oppose booth thin provision (Anti-dilution Provision) , say to oppose attenuant provision again, it is to show in the target the company undertakes follow-up project financing directional perhaps in adding hair process, illicit collect investor avoids the step that his equity devalues or portion takes by beyond the mark dilute.

The 1 connotation that opposes booth thin provision

Spread out thin clause has the branch of broad sense and narrow sense instead, of broad sense spread out thin clause includes 3 kinds of rights instead: Changeover counterpoises (point to a company share happening sends, share is torn apart, amalgamative when waiting for equity to recombine a circumstance, changeover price is made subsequently adjust accordingly) , preferential buy equity (preferential buy authority and preferential identify equity) , depreciate financing protection. Of narrow sense spread out thin article calls ratchet the clause again instead, show in the target the enterprise depreciates only financing (when Down Round) , investor holds some stock price to be worth the step that reduce and takes to prevent his. Counterpoise in view of changeover and preferential the right requirement that buys equity to had become illicit collect investor independently, spread out to turning over the understanding more of thin clause emphasizes particularly on currently the angle at narrow sense.

The 2 functions that oppose booth thin provision

1, the equity interest that protects investor. The equity interest function that protects person of venture capital investment is the fundamental function that booth thin provision opposes in venture capital investment. In venture capital investment, poineering enterprise often can undertake financing many rounds, when the financing with new every time, person of venture capital investment is faced with equity likely by attenuant risk, if do not have the protection of this clause, investor may be added through low by father endowment means is many attenuant equity, as a result washs out a bureau.

2, incentive function. Spread out thin clause is opposite instead poineering enterprise and its are virgin partner also has incentive effect, can make virgin partner make managemant decision more scientificly reasonably, assure company rise in value thereby, the low rise in value that can prevent a company or low issue action.

3, the interest balances a function. Spread out thin clause can use a balance instead the interest between virgin partner and person of venture capital investment. According to information asymmetry theory, when person of venture capital investment is investing, virgin partner uses the advantage position of its information, "Shocking " obtained person of venture capital investment's exorbitant appraise value, a when oppose attenuant provision main function adjusts the benefit between virgin partner and person of venture capital investment namely, make its achieve some this fair status.

The 3 sort that oppose booth thin provision

Of narrow sense spread out thin clause cent is instead " complete ratchet " clause and " increase advantageous position average price " clause (later development with A annulus is preferential it is a specification) .

1, complete ratchet clause (Full Ratchet Provision)

Complete ratchet clause is to point to the equity value that is like company follow-up to issue under A annulus the changeover price with applicable at that time investor, so of the investor of A annulus change the price actually to also want to reduce new emission the price.

Formula is: Investor holds a scale = investor contributive forehead / more underestimate a cost

Common state:

Suffer be confined to to indispensible Chinese government is approved or be registered inside the range that Chinese law laws and regulations permits, the company is delivering a day publicly first or hang out his shingle the decision recommends new investment before day square or take other any actions bring about scale of the equity in spreading out thin epicycle investor is in a company, should reach angel investor through epicycle investor beforehand written agree. And if should wait new equity of every per cent is monovalent (" new low case " ) under epicycle investor equity of every per cent is monovalent, criterion epicycle investor will have authority to obtain turn over attenuant protection, epicycle investor has right according to Bencizeng endowment case of trading every share price is equal to be opposite at new low case Bencizeng endowment case of freshness every share price undertakes adjustment, the equity that acquires a company to issue further (" epicycle investor is additional equity " ) , issue this in order to make to wait new hind the rights and interests of company all equity that epicycle investor holds to its (include Bencizeng endowment trade and epicycle investor is additional equity) what what pay is average be equivalent to new low case to valence, but employee holds a plan to allot an equity, or the exceptional case that classics board of directors and the other and incentive equity that epicycle investor approves distribute equity to should serve as a standard below arrangement.

Epicycle investor will from this supplementary equity number is: [(A*B)/C] – B

Among them: "A " point to Bencizeng endowment case of trading every share price; "B " Bencizeng endowment of company of hold of investor of the epicycle after trading total a number; "C " point to new low case.

[exemple]

If $200 of A annulus financing 10 thousand, by every preferential the initiative price of a $1 issues set of 2 million A in all preferential. In be inferior to expect as a result of company development so good, it is when B annulus financing, b set is first issue valence to drop for every $0.5, criterion the regulation according to complete ratchet clause, a set is first changeover price also is adjusted for $0.5, criterion of A annulus investor 2 million preferential can change for 4 million common stock, is 2 million original no longer.

By afore-mentioned knowable, complete ratchet clause is pair of investor huge protection, but too severe to the company exacting. The use of this clause in solid Wu often is restricted, for instance (I) is in only financing of follow-up first time (B annulus) ability is applicable; (Ii) is inside the time of a certain time after epicycle invests (for instance 1 year) the ability when financing is applicable; (Iii) is used " partial ratchet " means, for instance " half ratchet " or " 2/3 ratchet " ; (Iv) sets a base price, only follow-up financing price just sparks under set price oppose attenuant provision; (V) is achieved in the company when set manages an end, the with certain amount compensation that requirement take out opposes attenuant provision or takes the place of.

2, increase advantageous position average ratchet clause

In applicable " increase advantageous position average price " below clausal circumstance, when the price that target company follow-up releases buys the price of equity under investor, with all equity increase advantageous position investor of average price recount and target company are original the equity of partner, the equity dilute of original partner does not have such target companies so serious.

[exemple]

When investor of illicit collect equity invests 1 million yuan with every 10 yuan price, primitive shareholder of investor and target company occupies 100 thousand each (50% ) ; Later target company is added with every 5 yuan price send 10 thousand, again financing 50000 yuan, if use calculation of afore-mentioned complete ratchet method, 2 times the investor after financing occupies 200 thousand (1 million yuan / every 5 yuan) . If use,increase advantageous position computation of average price method, financing price is every 9.76 yuan (2, 050, 000 yuan / 210, 000) , investor has one hundred and two thousand five hundred (1 million yuan / every 9.76 yuan) .

The risk that 4 China law leaves and answer

Below Chinese law frame, as a result of China " company method " , " negotiable securities law " do not admit preferential, so investor cannot be bought preferentially from target company according to law. But preferential a right that reflects is OK arrange through the agreement, body spreads out instead now is on weak protection when equity selling as a result of company low in investor equity, investor has authority to win compensation. Differ according to the origin of equity, can the type cent that will turn over booth weak protection is compensated for the company and original partner compensates two kinds.

1, company compensation

Company compensation is to point to should spark when opposing provision of booth weak protection, issue new free equity to investor by the company, in order to offset the loss that investor equity spreads out poor institute is sufferred.

2, original partner compensation

Original partner compensation is to point to should spark when opposing booth thin provision, take out equity to compensate investor by the original partner of the company. Below this kind of mode, spread out thin clause sparks instead those who cause is the equity between partner is made over, be in nonexistent state-owned or foreign capital below the circumstance, the equity between partner transfers cost but by make over bilateral and free agreement. But in original partner free or when transferring equity to investor with symbolic significance price, the problem of accessary generation is duty Wu problem. Investor free acquires equity, do not have when imposing income tax obtain cost to be able to be offerred deduct, meeting faces heavier revenue burden.

When be like the fund outside investing factitious condition, right now target company invests an enterprise for the foreign trader, according to Department of Commerce " a certain number of regulations that equity of investor of foreign investment company changes " , the change of equity portion must sign up for business affairs to be in charge of sectional approval between partner, if not be equal in value and paid between partner, examine and approve on may have an obstacle. To this, one kind is compared replacing a method feasibly is equity cash of compensation translate into is compensated, should spark namely when opposing booth thin provision, pay brushstroke cash to serve as compensation to investor by original partner. The value of the equity that specific amount can reach according to spreading out thin clause is calculated instead is fundamental agreement. Same, this kind of means also can produce heavier revenue burden.

However, no matter be original partner,provide compensation to investor with equity or cash, the problem that avoids hard carries out pressure namely. Fall with equity compensatory circumstance in original partner, if sue,obtain a court to counterpoise really court decision, can depend on forensic court decision to apply for change to register to the industrial and commercial branch that register directly; Be like acquisition court decision is to ask original partner is fulfilled make over equity obligation, cannot request industrial and commercial change to register according to this court decision directly. Additional, when the fund outside investing factitious condition, although obtain a court to counterpoise really,adjudicate, still want business appoint approval just can apply for change to register directly.

8 pairs bet an agreement

To betting an agreement (Valuation Adjustment Mechanism, VAM) , metaphrase is " value adjusts a mechanism " , those who point to is to cast those representing capital and those representing capital of be in harmony to be in when reaching investment agreement, not affirmatory to future circumstance has a kind of agreement: If stipulation appears, it is OK to cast those representing capital exercise is opposite one kind the right with advantageous oneself, in order to compensates the loss of overmeasure company value; Otherwise those representing capital of be in harmony is OK exercise is opposite another kind the right with advantageous oneself, in order to compensate the loss that company value is underestimated.

1 pair bets consultative value

1, square to investment: Cast the information asymmetry between those representing capital and those representing capital of be in harmony to betting an agreement to be able to alleviate, reduce investment risk. Those representing capital of be in harmony is in strong position on information control, because this covers real news probably, stress oneself good point. To betting an agreement to be able to reduce this kind of risk, because be like those representing capital of be in harmony to provide information,have by accident, criterion the fixed target in the agreement cannot come true possibly, those representing capital of be in harmony assumes basis agreement corresponding liability to pay compensation.

2, square to financing: To betting an agreement can greatly drive and layer of tie business management, promote the development of the enterprise. Was to agree actually to betting an agreement mechanism of a rewards and punishment, if diligence of business management layer works to bet the condition that agrees in the agreement in couples, can achieve corresponding earnings, want to pay relevant price conversely.

2 pairs bet consultative form

1, cash amends an article

Serve as both sides with cash compensatory means " to betting " the condition is the commonnest to betting consultative form. When this means basically agrees when be in harmony those representing capital fails to achieve outstanding achievement target of the agreement, those representing capital of be in harmony manages a layer or control a person actually to just will give a certain quantity of cash to serve as compensation to investment; Conversely, if those representing capital of be in harmony achieved outstanding achievement target of the agreement, cast those representing capital to reward those representing capital of be in harmony with cash.

If China friendship brother invests control interesting science and technology to be signed " equity turns concessive investment agreement " when agreement, main shareholder assures control interesting science and technology control interesting science and technology was mixed 2010 profit of average 2011 net profit (A) not under the RMB 5, 0 yuan, if unfulfilment, main shareholder should according to (5, 0 yuan - A) × the amount of 22% compensates 12 times × Hua Yi's brother.

2, equity adjusts a clause

This kinds of clause also is common to betting consultative form. When outstanding achievement index of the agreement did not come true, it is OK to cast those representing capital low is added endowment, or it is OK to cast those representing capital free or low suffer allow company equity; Conversely, cast those representing capital to transfer free or low the enterprise to control a person actually one part equity.

Like Magenshidanli He Dinghui invests always when happy electric equipment, with always layer of management of happy electric equipment signs an agreement, if always the net profit 2007 exceeds happy electric equipment 750 million yuan of RMB, foreign capital partner will be made over to administrative layer 4, six million nine hundred and seventy-three thousand eight hundred always; of equity of happy electric equipment if net profit equal or under 675 million yuan, administrative layer will be outward endowment partner is made over 4, six million nine hundred and seventy-three thousand eight hundred always equity of happy electric equipment.

3, equity counter-purchases a clause

This clause basically appears on the market to be opposite as the condition with the enterprise bet, if the company did not appear on the market inside conventional deadline,

Be like 2009 Ji Rongjun in become a shareholder to go up frequently when photoelectricity, with go up frequently the group is signed " the agreement that counter-purchases about share " the sanction that the IPO application of conventional publisher cannot win Chinese card inspect to meet before June 30, 2011, or before any time are diligent on group or publisher bright show abandon appearing on the market of arrangement or relevant job, the requirement having right such as Ji Rongjun is diligent go up all publisher share that the group counter-purchases its place hold.

The lawful sex below 3 pairs of national law in betting an agreement to be in is analysed

1, be in to betting an agreement the effectiveness of contract law

Laws and regulations of our country law does not have the to betting an agreement lawful sex that involves to investing the place in the process to have direct regulation at present. Send the contract between those representing capital and those representing capital of be in harmony to betting an agreement to be essentially, if do not have our country " contract law " the main content with the invalid contract of 52 regulations, regard as effective. It is the child of bilateral meaning autonomy to betting an agreement, do not involve the effect of pair of public interests commonly, also do not violate convention of public order fine. Serve as a kind of contract to betting an agreement so, its are effective.

2, the effectiveness of level of fair to betting an agreement to be in judicatory

If equity adjusts,undertake finally between company shareholder: In finite liability company, between partner according to already some agreements realize equity to make over do not have legal obstacle. In Inc. , as a result of our country " company method " preferential without formulary partner buy authority and partner to make over equity to need other shareholder to agree, so equity can be made over freely, also be lawful to betting consultative arrangement.

If equity adjusts in company and investment undertake between Fang Zhi: According to the analysis of rich case of later development sea, the supreme court thinks, the interest that violates company creditor what join those representing capital and company to because involve,betting an agreement and should belong to invalid.

Accordingly, should sign the party meaning to betting an agreement to express only true and consistent, and do not violate the regulation of afore-mentioned law, and not undeserved the interest that harms company creditor, should get law to betting an agreement so affirm and protect. In fact, from the point of the premise that signs to betting an agreement, its are the demand of industry financing normally, no matter investment still is bought,be a kind of normal market action.

4 classic to betting an agreement case

1, proposal of unconscious cattle company

To betting consultative form: Equity is adjusted

To enlarge enterprise dimensions, meng Niu from 2001 the bottom begins to be contacted with the orgnaization such as Magenshidanli, expectation introduces foreign capital. Magenshidanli was noted to Meng Niu 2003 endowment 35.23 million dollar, at the same time both sides was signed to betting an agreement. Bilateral agreement, arrive from 2003 2006, those who cheat an ox is compound year of increase rate if under 50% , unconscious ox free makes over Magenshidanli 78.3 million equity; Be like prep above conversely 50% , magenshidanli makes over Meng Niu 78.3 million equity. As a result Meng Niu fulfilled the requirement that the agreement agrees, obtained the equity that Magenshidanli gives to reward.

In this case, because those representing capital of be in harmony fulfilled the requirement that the agreement agrees, friend wins the home into what bet an agreement to be opposite.

2, always case of happy home appliance

To betting consultative form: Equity is adjusted

Always happy home appliance to attract capital market financing, at as square as investment 2005 Magenshidanli Ji Dinghui investment was signed to betting an agreement. Bilateral agreement always happy home appliance is clean 2007 if profit exceeds 750 million RMB, criterion investor makes over forty-six million nine hundred and seventy-three thousand eight hundred to those representing capital of be in harmony, if net profit is less than 675 million RMB, criterion those representing capital of be in harmony makes over investor forty-six million nine hundred and seventy-three thousand eight hundred, if be less than 600 million RMB, criterion those representing capital of be in harmony makes over investor ninety-three million nine hundred and forty-seven thousand six hundred. But result always the condition that happy home appliance cannot complete an agreement from beginning to end, in pair of as square as capital failure in betting an agreement, can save actual strength through incorporating with beauty of country of the biggest competitor only.

In this case, because those representing capital of be in harmony cannot fulfil the requirement that the agreement agrees, reason became the loser to betting an agreement.

3, proposal of group of spruce Changjiang Delta

To betting consultative form: Equity is counter-purchased

Group of spruce 2008 Changjiang Delta and vessel sunshine investment comes to an agreement, vessel sunshine exchange spruce Changjiang Delta with 200 million RMB the equity of 10% , at the same time both sides was signed to betting an agreement. Consultative requirement, before spruce Changjiang Delta wants do one's best to be by 2012, appear on the market, if appear on the market,fail, and blame vessel sunshine the reason of the respect, criterion vessel sunshine authority exits spruce Changjiang Delta in order to counter-purchase means. However as a result of meal industry especially the depression of high-end meal industry, spruce Changjiang Delta cannot appear on the market from beginning to end, what its can hold some equity to counter-purchase with cash Jiang Dinghui only go back, final and primitive large stockholder can betray equity to serve as pair of vessels only sunshine compensation, lost the control power to spruce Changjiang Delta thereby.

In this case, those representing capital of be in harmony cannot fulfil conventional requirement, paid the heavy price that loses a company to control right finally.

4, record of sea rich investment

2007, sea rich investment serves as cast those representing capital and world constant coloured, world constant coloured the only partner Hong Kong at that time enlighten inferior limited company (the following abbreviation " enlighten inferior finite " ) , enlighten inferior Liu Bo of person of finite and effective control, sign jointly " add endowment agreement " , conventional sea rich investment with cash 20 million yuan of RMBs undertake adding to world constant coloured endowment.

Short of of if world constant coloured is actual 2008 net gain 30 million yuan, sea rich investment has authority to ask world constant coloured gives compensation, if fails to fulfil compensation obligation, sea rich investment has authority to ask enlighten inferior finite fulfil compensation obligation. Compensation amount =(1-2008 year profit of actual net profit / 3, 0 yuan) × this second investment amount.

Because of world constant coloured profit of 2008 year net profit is 26858.13 yuan only, did not achieve " add endowment agreement " profit of net of this year acceptance. Court of intermediate people of city of state of Xiang Lan of sea rich investment (court of first instance) to lodge a complaint, the request sentences Ling Shiheng coloured, enlighten inferior finite, Liu Bo pays compensation fund nineteen million nine hundred and eighty-two thousand one hundred yuan to its.

Supreme court viewpoint:

(1) sea rich investment can invest capital to achieve relatively fixed earnings with respect to its, and the influence that won't be managed outstanding achievement by world constant coloured, meeting caustic and world constant coloured reach the increase of its creditor, court of first instance and basis of 2 careful court " company method " mix the 20th times " law of enterprises of joint venture of China and foreign countries " the 8th regulation is maintained " add endowment agreement " it is correct that medium this section clause disables;

(2) Hong Kong enlighten inferior the interest that the compensation acceptance of rich to the sea investment does not harm world constant coloured and its creditor, of not lawbreaking code prohibit sexual regulation, the true meaning that is party expresses, so effective.

(3) the 2 careful of this case adjudicate cancel of court decision of top magic art, and by Hong Kong enlighten inferior Xiang Haifu investment pays an agreement to compensate a paragraph 1,

Accordingly, the supreme court thinks, the interest that violates company creditor what join those representing capital and company to because involve,betting an agreement and invalid, but the true to because be both sides,betting an agreement meaning of its and partner expresses and the interest that does not harm company creditor and effective.

5 card inspect can bet consultative specification about be opposite

Chinese card inspect can issue superintendency ministry to was released on March 25, 2019 " head a certain number of problems solve hair business " , right before issueing, managed to make a specification to betting an agreement like where.

Bet an agreement to be opposite, card inspect can point out, invest the agreement when the orgnaization is investing publisher to wait for similar arrangement to betting an agreement, in principle asks publisher clears before declare, but satisfy what ask below to need not clear at the same time: It is publisher nonfeasance to betting consultative party; 2 it is the agreement that nonexistent to betting an agreement likelihood causes a company to control adaptability in tactics to change; 3 it is right bet an agreement not with market prise link up with; 4 it is publisher of nonexistent to betting an agreement serious effect lasts business ability is other perhaps and serious the status that affects investor rights and interests.

The solution that card inspect meets is from what safeguard market stability to set out, its are aimed at stretch to betting an agreement to make arrangement, although was opposite in the negative,bet consultative effectiveness, but to appearing on the market hind affect stability of company equity structure possibly ask to betting an agreement publisher is declaring ongoing travel to clear.

9 pulling counterpoise

Pulling counterpoises (Drag-along Right) , say to sell by force again counterpoise authority, compulsively along with carry out or receive carry out right, be did not appear on the market inside the deadline that if be agreed in by investment company,points to, or the selling that bilateral issue preengage decides conditional achievement, criterion investor has authority to ask virgin partner and he transfers equity to tripartite together, virgin partner must press investor and the price that tripartite reachs and condition, by be being invested with investor the equity scale in the enterprise transfers equity to tripartite.

The connotation that 1 pulling counterpoises

Will simply tell, pulling counterpoises even if compulsive and virgin partner sells investor the right that gives equity, it is investor trades for dominant follow-up, compulsive and virgin partner accepts investor follow-up to trade arrangement, make sure investor regards small shareholder speech as a kind of right of authority.

After pulling authority clause sparks, the investor agreement according to liquidation priority item is first the allocation that participates in belongings, father partner participates in surplus property again (if have) allocate.

2 pulling authority puts the lawful sex that be in

Pulling authority is not legal right, however the right of a kind of agreement, it is a kind of when behavior deals with to undertake with respect to equity between partner extraordinary agreement. Our country " company method " although stipulate equity is made over " must agree via other shareholder more than half " , but " company rules makes over what have a regulation additionally to equity, set from its " . Accordingly, prohibit in not lawbreaking code below the condition that the gender sets, method of our country company respects the autonomy of the company adequately, allow investor and virgin partner to make the contracted arrangement that differs with legal provision.

Generally speaking, pulling authority can agree in investing agreement or shareholder agreement. But as above, make over to equity when company rules when making a provision, according to constitution processing. In be being carried out so, from investor angle is told, in company rules formulary pulling counterpoises more be helpful for operating, there is effectiveness more in investing an agreement than the agreement.

The action that 3 pulling counterpoise

Pulling authority is very valuable to investor, the intent that its advocate to pulling counterpoises basically is the price chip that increases its to sell equity, obtain price of excessive of control advantageous position, also can use force in order to give virgin shareholder.

Above all, investor is to serve as small shareholder to appear commonly, its are alone equity sell one's own things, normally won't somebody likes " receive dish " , although have, in suffer let the price go up to also can have very big difference. If can virgin partner sells together on pulling, equity of sell one's own things is increased apparently, actually the behavior that sells equity behavior turned resell into the company, can produce price of excessive of control advantageous position, affect the appraise value of equity greatly.

Next, the resell that pulling authority makes investor mastered a company actually counterpoises, if investor gives a person of the same trade the big company of course of study company resell, can win taller investment get one's own back, and sending through be being made public first exit all right when sufferring market environment influence to become not quite ideal, pulling authority offerred a way that exits at high price for investor undoubtedly.

Again, investor is OK also the right of resell of have the aid of, use force to father partner, ask its comply with oneself proposal.

The limitation that 4 pulling authority counterpoises all right

In practice, the possibility that virgin partner agrees with completely to pulling authority is not large, because its cultivate the company single-handed, be opposite normally company love is deeper, the major equity that is in a company to selling its is very loath, although sell, its control right to when selling him Yi Xiwang can have a control, is not the traction that gets investor. Accordingly, virgin partner often can is opposite attributive of investor exercise pulling is decided a series of condition.

1, restrict what pulling counterpoises to strike hair requirement

For example:

(1) did not appear on the market inside the deadline that is agreed in by investment company (often be a longer deadline) ;

(2) half-baked before appearing on the market established financial index (profit of the net after duty) ;

(3) be in achieve fixed investment period regressive piece not Anacreontic reach administrative layer to decide nonperformance appears on the market wait for a circumstance to fall;

(4) when only those who sell stock ability achieves investment book lowermost return rate;

(5) the lowest price that set offers equity;

(6) when the condition that other issue preengage decides is accomplished.

2, limitation is subjective and baleful

The exercise that pulling counterpoises ought to be well-meaning, investor does not get crustily exercise, for example, sell equity his associated person with low. Below this kind of circumstance, virgin partner may principal is not had return. But, sell equity to associated person, be not be attributed to invalid, should satisfy price evenhanded, program only the principle with lawful, sufficient exposure can.

3, the opportunity that limits exercise right

That is to say, assuring this equity that exercise pulling counterpoises to make over is the last medium of communication that investor fund exits.

4, limitative equity makes over an object

On one hand, virgin partner can ask to restrict the object that equity makes over in the clause, must not make over its competitor for instance other perhaps the person that lets virgin partner cannot be accepted. On the other hand, when investor equity is made over, if a few buy a person to be able to choose, in price condition same situation falls, virgin partner ought to have option. Additional, if equity buys a person to be willing to be in,become by one of partner of investment company, cooperate with virgin partner, do not spark actually the exercise that pulling counterpoises.

The common pulling authority provision in 5 practice

1, the starting condition that pulling counterpoises

Each just agree, after this agreement signs at the expiration of one's term of office of 48 months since day, if (I) company qualification appears on the market or qualification hangs out his shingle all up, have any tripartite again at the same time (" buy square " ) the equity that plans to buy a company, and at the appointed time company estimate value is more than a RMB 2 billion yuan when, or (Ii) company is immersed in management predicament, outstanding achievement to glide two years continuously, at the same time again any buying just plan to buy the equity of the company, in epicycle investor and angel investor collective approval should sell behavior (the definition sees later development) below the circumstance, criterion the other shareholder of the company all answer vote through should sell behavior, adopt all and necessary step to cooperate to finish should sell behavior, and be sought no longer be evaluated and abandon what law gifts seeking the right of other relief way.

It is the purpose of this agreement, "Sell behavior " point to through amalgamative, recombine or other way sells company equity, or sell company assets wait.

2, the exercise means that pulling counterpoises

When epicycle investor and angel investor exercise sell right compulsively, should sell behavior written announcement company and other shareholder, this announcement should include: (I) suffers yield square title, (Ii) company offers the price, and (the other item that Iii) should sell and condition. Be in after company of written announcement delivery and other shareholder inside 30 days, other shareholder ought to agree to should sell and the director that should urge its accreditation should sell in the approval on the board of directors, the coequal provision that in answering to inform in order to sell, other shareholder sets and condition and price sell its hold some equity. If other shareholder does not agree to sell equity, need to buy the entire company equity of epicycle investor and angel investor hold in order to be equal at the price of tripartite.

6 pulling right is common difficulty problem

1, pulling right person is most partner or minority shareholder

Trade in venture capital investment in, pulling authority is by the investor that regards minority as partner place is enjoyed normally. Venture capital investment person trade the purpose depends on making sure its safety is exited, and one of important channel that exit are a company be bought by tripartite. The design that pulling counterpoises, gift namely the partner right with bigger investor, make although its regard minority as partner, can enjoy the decides the company is made over right that enjoys by ability of great majority partner originally however.

2, pulling authority and preferential the concern that buys right

Of pulling authority clause reach ought to regard all partner as to all agree with pulling right person to transfer equity to tripartite, but when other shareholder exercise preferential when buying right, the purpose that brings about tripartite possibly to counterpoise to the clause comes true and buy a company through pulling cannot come true. Pulling right person is based on an interest the biggest the consideration that turn, can carry the kind of modification company rules, the relevant content that counterpoises pulling gives in constitution solidify, those who eliminate other shareholder is preferential buy right, be executed in order to make sure what pulling counterpoises is successful and of tripartite buy normally.

10 protection clause

Protection clause (Protective Provision) , call major item veto again (Veto On Important Matters) , it is the consideration that shows investor stems from pair of oneself to regard small shareholder as the interest, ask with the identity of directorate member or partner the major item to the company and the item with investor be closely bound up have veto, perhaps saying is retrorse power to make decisions.

1

The action of protection clause

Illicit collect invests medium protection clause, it is the rights and interests of illicit collect investor that serves as small shareholder for protection and one kind when make votes mechanism arrangement, this kind of arrangement may involve shareholder already meeting meeting is voting, involve conference of board of directors possibly also to poll, adopt this kind of arrangement, make specific action blame agrees to must not be carried out via investor of this illicit collect. Specific and character, its action has:

1, the interest that maintains investor. Investor is the small shareholder that serves as a company below most circumstance, often do not share the management of the company, put in the information asymmetry with serious move. In process of company follow-up operation, if virgin partner serves as large stockholder to abuse the control power to the company, investor serves as small shareholder, the interest that is in a company will be damaged. Investor adopts exercise protection provision, proper control can master to counterpoise on a few item with its interest be closely bound up in order to maintain the interest of oneself.

2, control company venture, ensure company normal operation. A having veto to major item is investor control risk important step, investor holds the veto of a lot of and major item in the hand, core considers even if can assure a company to be in what run a group outstandingly to guide below, the business of the company expands on established orbit, avoid company business " off the rails " . Current, our country " company method " the right safeguard that carries out pair of small shareholder with the company is very fragile still, because this investor is withheld in target company at least the protection provision with important part is very necessary.

The classification of 2 protection clause

1, core vetoes item

Core vetoes item is to ensure investor to regard as preferential a right of partner and position, and whether does the equity with the company, major asset, great ways of the world, company put add to wait for relevant major item, do not involve the company's particular management work. This kind of clause basically includes company of investor equity change, increase and decrease to register capital, counter-purchase company equity, offer rules of company, modification company, variation amount of trustee of board of directors, allocate dividend to wait. In the negotiation of investor and company, to specific overrule item to be able to be put in difference, but core overrules item to be able to be withheld commonly.

2, optional veto item

Optional veto item day-to-day management of company of main side overweight, this kind of item is investor and the main difference that the company negotiates, the likelihood changes somewhat according to the different situation that trades every time and negotiation result, if make one-year budget,wait.

Middleman and guarantor of 3 solid Wu protects the application of sexual clause

1, main content of the clause

(1) of the right that changes investor equity possibly and position;

(2) the likelihood changes investor equity proportional;

(3) the likelihood changes investor equity to exit redound.

2, of the clause common state

Each just agree, before company qualification appears on the market or qualification hangs out his shingle, main item needs the partner that via company shareholder meeting hold exceeds 50% above right to vote to agree under the company and classics [some investor] agree to just can be passed (belong to item of resolution of board of directors, should agree to just can pass via director of this investor accreditation) :

(The scope of business of 1) company, essence and / or the major change of business activity;

(2) company is added endowment, decrease endowment, form of company of amalgamative, schism, change, stop to do business, liquidate or disband;

(3) company rules is changed;

(4) mentions to will be changed or change the right of any partner, obligation or responsibility, or attenuant any shareholder equity are proportional any lawsuit or arbitration;

(Budget of 5) year finance affairs and / or with respect to the year finance affairs that already approved the budget does heavy overhaul to change;

(The one-year budget specified number that 6) can approve in classics partner is spent outside, buy and deal with (include bear hire, rental, make over, discard as useless etc) more than [1 million yuan] main asset;

(7) is spent in forehead of classics approval one-year budget outside, contributive establish more than [1 million yuan] subsidiary, joint ventures or other invest external;

(8) is spent in forehead of classics approval one-year budget outside, the company exceeds to loan of bank odd pen [1 million yuan] or the accumulative total inside 12 months exceeds [5 million yuan] lift debt Wu external;

(9) company and associated Fang Chao pass [1 million yuan] trade;

(10) any about brand of the intellectual property such as copyright of special right, patent technology, software buy and deal with (include to sell, accept or offer a license to use etc) matters concerned;

(11) company is offerred external assure;

(12) company provides loan external;

(13) activate, approval, revise any equity drive to plan

(The shareholder agreement that 14) reachs subsidiary to the company / of the clause in memorandum and constitution supplementary, revise or delete;

(Announce sends 15) dividend or other distributive, reach any changes of company dividend policy

(The trustee that 16) investor nominates is obtained after hiring, the amount of chair of board of directors changes;

(Of 17) company appear on the market plan, those who include intermediary orgnaization recruit, appear on the market time, place, price;

(18) company's new financing plans.

3, voting scale regulation

If firm investor partner is more and authority of each investor speech comparatives, protection clause can be installed for when particular proportional investor agrees in investor partner relevant item can be passed vote, "Agree " the scale of the ticket connects standing to be " most " or " more than 50% " , namely before the company should carry out the item that protection clause agrees, want to obtain hold majority or partner of more than 50% investor to agree. Below a lot of circumstances, this scale is installed higher, for instance 2/3.

Normally, this voting proportional doorsill is lower more advantageous to virgin partner. If too tall, appear possibly by the circumstance of the veto of investor unduly exercise with equity small proportion. For instance, the clause asks 90% investor partner agrees, is not most (50.1% ) agree, so the investor partner of 10.1% can control a hold actually protection clause.

4, the virgin partner limitation to protection clause

The specific content of protection clause is virgin partner and the result that investor partner rich weichis, when virgin partner is stronger, can bring to bear on to be restricted certainly to the exercise of protection clause, in order to reduce the intervention with decision-making to the company investor, for example:

(1) after requirement company operation achieves level sex milestone, purify is certain protection clause;

(2) the certain protection clause that asks investor becomes " level of board of directors " , approval authority is by the delegate of board of directors of investor when resolution of board of directors exercise, and not by investor partner direct exercise.

4

Protection clause is in what Chinese law falls to carry out

1, shareholder of finite liability company meets vote

" company method " the 43rd regulation:

"The pattern of discuss official business that partner meets and vote program, outside dividing what this law has a regulation, by company rules provision. By company rules provision..

"Meeting meeting makes partner modification company rules, increase or reduce the resolution that registers capital, and company the amalgamative, schism, resolution that disband or changes company form, must pass via representing the shareholder of 2/3 above right to vote. Must pass via representing the shareholder of 2/3 above right to vote..

Accordingly, company amalgamative, schism, disband or change company form these 4 kinds of item, must pass via representing the shareholder of 2/3 above right to vote, except this mandatory outside the regulation, of the any other business vote regulation can make a provision by company rules. So, investor is based on China " company method " inside the range that a certain number of item that can take oneself seriously very much include need partner to be able to pass ability resolution consistently.

2, of board of directors of finite liability company vote

" company method " the 48th regulation:

"The means of discuss official business of the board of directors and vote program, outside dividing what this law has a regulation, by company rules provision. By company rules provision..

"The board of directors ought to discuss the decision consummate conference of item to record to place, the trustee that attends the meeting ought to sign on conference record. The trustee that attends the meeting ought to sign on conference record..

"Of resolution of board of directors vote, execute one person one ticket. Execute one person one ticket..

Be based on this, investor is OK the limits that brings into a certain number of major item the board of directors to be passed consistently. Need an attention is, when the range that includes board of directors or partner meeting resolution these item, need consideration law is met about shareholder of finite liability company and the basic division of labor of the board of directors.

3, the foreign trader invests an enterprise

To Chinese-foreign joint venture or enterprise of collaboration of China and foreign countries, its processing structure is relatively simple, have a board of directors only commonly, and meet without partner.

" law of enterprises of joint venture of China and foreign countries carries out byelaw " the 33rd regulation: "Following item passes consistently by the trustee that attends meeting of board of directors just can make resolution: (one) the modification of rules of jointly owned company; (2) the break down of jointly owned enterprise, disband; (3) the addition that jointly owned enterprise registers capital, decrease; (4) the amalgamative, schism of jointly owned enterprise. Any other business, can carry according to rules of jointly owned company bright rules of procedure makes resolution. Can carry according to rules of jointly owned company bright rules of procedure makes resolution..

This provided the specific item that requirement board of directors carries consistently only, the any other business can carry according to rules of jointly owned company bright rules of procedure makes resolution, the director that a certain number of major item that investor can take his seriously completely include need its delegate agrees with ability to make the item of resolution.

" management law of enterprises of collaboration of China and foreign countries carries out detailed rules " the 29th regulation with the 30th and law of enterprises of joint venture of China and foreign countries carry out byelaw " the 33rd provision is similar, also gave protection clause applicable legal space.

On put together knowable, it is to be in finite liability company no matter, still be management enterprise of collaboration of enterprise of joint venture of China and foreign countries, China and foreign countries, of protection clause applicable and general also do not have legal obstacle.

11 counter-purchase authority

Counter-purchase authority (Redemption Rights) is to show investor is below specific situation, requirement company or virgin partner buy the right that returns its to hold some equity with specific price. The specific price that investor asks is investment of investor capital stock to increase certain excessive price commonly.

The 1 setting that counter-purchases power generation

To investor character, when the company development cannot come true to certain level issue when appear on the market or be being bought by price of tripartite tall excessive, its capital can produce time cost, because this needs those who have safeguard to exit means; Additional, fund of average venture capital investment has lifecycle, fund needs to realize a project to exit inside fund lifecycle, make sure fund itself is clear dish change from time to tome show channel.

2 counter-purchase authority touch oestrus form

Investor counter-purchases authority touch oestrus form to have a few kinds as follows normally:

1, the company cannot finish appear on the market wait for fixed target: The company cannot be in the latest Bencizeng endowment 48 months since prompt day finish qualification to appear on the market before or qualification hangs out his shingle, and investor needs to exit again at the appointed time; Or investor director agrees to appear on the market, but because father reason is brought about,appear on the market resolution fails to pass, or because manage an endless the greatest effort,cooperate to bring about appear on the market fail to press appear on the market plan of plan and schedule undertakes as scheduled (" overrule qualification to appear on the market " ) .

2, company or virgin partner break a contact: Company and / or virgin partner takes place other and serious violate a treaty, disobey any allegation and the obligation before assure matter or disobeying either complete a business transaction and / or the acceptance after complete a business transaction and obligation (" other and serious violate a treaty " ) as a result affects investor interest badly, and the other and serious violate a treaty such as this fails to be corrected or be made up for inside 30 days after epicycle investor is witting.

3, company or virgin partner exist to wait for sincere letter problem false: Virgin partner appears great individual sincere letter problem, especially the cash outside Zhang of unwitting of firm occurrence investor sells income and expenses, or Bencizeng endowment before virgin partner or the company assets that the company announces or as a result of serious inconsistent with the facts affects management condition badly the investment rights and interests of investor.

The 3 forms that counter-purchase authority

1, the company is counter-purchased

The company is counter-purchased is the equity that shows the company buys investor with realizing investor exit. The company is counter-purchased whether can undertake depending on two respects, it is the belongings state of the company; The 2 essence that counter-purchase as a result of the company are the company decreases register capital, because this is returned,depend on legal limitation.

Our country " company method " the limitation that counter-purchases authority to partner exercise:

(1) the partner of nay of item of specific to the company resolution just has authority to ask the company is counter-purchased. Does item of this kind of specific resolution include: ? Stand erect of  of what of Xian of Huang of Ling of  of  nine  farring away washs rice stand erect of Mu of ǖ of Suo of ü of Jing of daughter-in-law of  of drag of ⑶ of  of  of  of  of  of Jing Mengjiong Gui of  of  of  Xi  washs rice company of? of  of  Qiong Qiong the amalgamative, schism, ; that transfers main property company, partner meets what the conference makes through resolution modification constitution the company puts add (the 74th) .

(2) the company is decreased endowment the legal order with need very firm course, include to inform creditor, wait in detailed list of balance sheet of the announcement on newspaper, work out and belongings (the 177th) .

2, father is counter-purchased

Father counter-purchases a name to be " counter-purchase " , solid for " equity is made over " , namely father gets the equity that allows investor.

Below this kind of mode, the virgin partner of investor need and company is signed " equity makes over an agreement " , equity is counter-purchased also simplify to be made over into common equity trade. To make sure virgin partner is in investor advocates to the agreement is fulfilled when counter-purchasing authority, investor can ask to be in " equity makes over an agreement " in the penalty due to breach of contract with heavier agreement, pair of price that the equity that the amount of penalty due to breach of contract can expect to obtain for investor counter-purchases.

Assume by virgin partner counter-purchase responsibility to have greater capital pressure to virgin partner, usually, virgin partner can ask, its assume the in the limit of of market evenhanded value that counter-purchases responsibility to hold some company equity at the appointed time with its. For example:

"Virgin partner is in this below counter-purchase obligation to must not exceed its to be based on market evenhanded value to deal with the total income that its maintain place of some entire company equity to obtain, but do not include the earning that company equity deals with on its history and company accumulative total to share out bonus to its the accrual of earning.

4 counter-purchase the price

1, in counter-purchasing authority clause, equity counter-purchases or equity suffers make the price general press the following and both the biggest person affirmatory:

(1) fund of investor place investment presses calculative of year of certain investment return rate to invest capital and accrual the sum;

(2) investor is given out " equity is counter-purchased " written announcement the company net assets with corresponding that day equity of investor place hold.

2, counter-purchase price clause state as follows normally:

Each just agree, if afore-mentioned reasons bring about what epicycle investor asks to counter-purchase, in counter-purchasing the price to be following amount taller person:

(During fund of investment of 1) epicycle investor is investing since prompt day with year of investment return rate of 12% (compound interest) the amount that computation gives accrual and investment fund capital (the profit that deducts a company to already paid epicycle investor allocates or dividend extra dividend) ; Or

(The company of correspondence of scale of equity of 2) epicycle investor the company net assets up to the day that pays to counter-purchase money paid for something purchased or received for something sold entirely to epicycle investor.

The 5 risks that counter-purchase authority clause

It is relatively difficult that the biggest risk that counter-purchases authority is being carried out at counter-purchasing, spark in the company when counter-purchasing a clause (like the company cannot IPO, large stockholder break a contact) , if the company does not have enough ready money, when also cannot acquire cash reserve in a bank through financing, counter-purchase a clause to be met cannot carry out. Normally the company has enough ready money to carry out when counter-purchasing a clause, the outstanding achievement that demonstrates a company is passable, investor also won't be carried out counter-purchase a clause. Accordingly, executive problem is to counter-purchase the risk with authority the biggest provision,

This kind of case has two kinds to settle way normally, it is equity of large stockholder compensation, the result is investor becomes company large stockholder; The 2nd kind is the company enters liquidation order, investor enjoys preferential liquidation right.

Court of 6 our country is right those who counter-purchase authority clause maintain

1, the supreme court -- course of study of sturgeon of gorge of day of limited company of fishery of special type of Dou Tianxia of La Zeqiao, appropriate, Hubei limited company and Suzhou Yuan Jiuding invests a center (limited partnership) desk of other contract dispute

Forensic point of view: Above all, party is in " investment agreement " outside special the protects investor interest provision that establish, belong to conclude a treaty the arrangement of the party in the process to risk of investment collaboration business, this clause and " investment agreement " medium relevant equity rewards a clause to answer relatively, the true meaning that fastens each party expresses. Next, case experience agreement is counter-purchased what the content of equity does not disobey state law, administrative regulations to prohibit by investment square partner about be below certain condition sexual regulation, nonexistent " contract law of People's Republic of China " fiftieth the case with 2 sets concerned invalid contracts. Finally, accuse contending for an agreement is the unanimous agreement that each party is this to trade to be reached of one's own accord only, be not home remedy beforehand protocol perhaps is used repeatedly, the pattern contract that does not belong to regulation of our country contract law place or format clause, nonexistent show the issue that misses fairness.

2, Zhejiang saves quadrangle of Wen Zhou city -- since Zhu Li, the equity such as hair investment limited company transfers even Yun Gangding dispute record

Forensic point of view: The agreement is true and freewill meaning expresses both sides, yi Wei offends our country mandatory legal laws and regulations, belong to meaning autonomy category. This agreement conduces to stimulative Eden company adding endowment of behavior finish smoothly lawfully, rise to assure certainly to trading bilaterally function, equity counter-purchases the achievement of case to require the condition with spark certain, reason appellant advocates bilateral department since vessel hair company, Zhu Li " the name is investment, solid for leasehold " not agree with with the fact, this agreement fastens punish of freedom of new, old partner at the same time the behavior of its shareholder rights and interests, do not damage the rights and interests of company other shareholder, do not violate the principle that partner venture carries in all, accordingly this equity counter-purchases a clause to should be effective.

The case on put together, want to counter-purchase authority clause to did not disobey the meaning with true party to express only, do not belong to invalid contract namely, criterion the court maintains this provision commonly effective, reason counter-purchases authority clause to do not have applicable obstacle in our country.

12 first investment counterpoise

First investment counterpoises, say again preferential with drop advantageous position, it is to if company happening clears particulars of a matter,point to and investment just did not call in of amount of corresponding and preferential liquidation, should invest the new project that just undertakes inside particular to father fixed number of year to enjoy the right that other investor invests precede over.

The system setting that 1 first investment counterpoises

First investment advantageous position is investor to its relatively valued author, retain one wheel pair its are new the project is first the right of investment.

Normally the circumstance falls, angel investor values the development perspective of the individual aptitude of father and company, if father project is successful, investor is met disinvestment and achieve certain earnings; If father project fails, investor will the loss invests a money. Below the case that fails in the project, although fail but father gained certain poineering experience, harvested industry person arteries and veins, established a group. Because itself of inchoate poineering project has taller mortality, because this investor also hopes,can participate in the next poineering project of father.

The content that 2 first investment counterpoise

1, investor counterpoises to the first investment of father new project

Common provision:

If virgin partner undertakes new project (see later development) , if company happening clears particulars of a matter and investment just did not call in of amount of corresponding and preferential liquidation, should invest square precede over having right other investor is new to this the project has investment.

New project points to after liquidating incident happening or in what get investor written after agreeing, father alone or combine other principal part and as main controller or one of main controller in order to establish new company or buy the new commercial act that already put the means such as add enterprise to be engaged in reaching joint-stock company affiliated enterprise at joint-stock company independently.

2, the investment that the caustic unwise that investor suffers in epicycle investment joins new to father project

Common provision:

If company happening liquidates incident, and the liquidation money that investor place obtains did not achieve his to invest money amount to the company, the sun that liquidates incident happening oneself rises [] inside year, if virgin partner undertakes new project and investor invests this project, criterion the investment fund to new project is investor its are in this second investment the loss that suffers, did not obtain the money of liquidation namely.

In practice, the content that first investment counterpoises is OK by achieve cast both sides to talk things over, the investment dispute that joins pair of new projects to unwise of caustic of early days investment among them is bigger. The investor when father can hold this loss ought to susceptive invests a risk, and investor can advocate investor is father advanced period the resource that accumulates in investment and ability buy sheet, because the loss of this investor is a kind of aeriform investment to new project, answer to enter investment below one round by estimation of its currency value.

The implementation that 3 first investment counterpoise

1, the exercise condition of the right

(1) termless travel counterpoises

Termless travel authority is to no matter,point to this second investment profit and loss, investor all enjoys the first investment of new to virgin partner project to counterpoise.

(2) conditional travel counterpoises

Conditional travel authority is the exercise that shows first investment counterpoises with certain conditional in the limit of. Include normally: I) shareholder agreement agrees company business target reachs some agreement number in a person operating from within in coordination with outside forces of conventional fixed number of year, did not amount to mark actually; Ii) after liquidating incident happening, the money that investor shares is little at investing a money; Iii) after liquidating incident happening, the money that investor shares is little at pressing liquidation lien investor anticipates redound.

2, the exercise time of the right

(1) termless right

Termless right and result of termless travel authority are similar, it is to gift the permanent investment lien of investor, will achieve cast both sides to be bound till the cows come home together, make father is accepted hard below the circumstance normally.

(2) have deadline right

Having deadline right is to show first investment advantageous position has a time to restrict, investor has square inside this deadline feasible right only. Another problem related to deadline is to have within a definite time time calculates since the right that first investment counterpoises, include normally: I) calculate since the day that liquidates incident happening; Ii) calculate since the day that leaves his post from father.

3, the exercise time of the right

(1) achieve it is OK to cast both sides the frequency that first to investor investment counterpoises does not do restriction, investor is accordingly new to every of the project every time financing all enjoys lien. Be like:

Father undertakes new project, in this new project plans to undertake first time and follow-up financing when, investor enjoys the right that other investor invests precede over.

(2) achieve it is OK also to cast both sides the frequency that first to investor investment counterpoises makes limitation. Be like:

Father undertakes new project, investor is opposite only this first time financing of new project enjoys the right that other investor invests precede over, after this right exercise, clause of this first investment advantageous position is automatic invalidation.

4, the specified number that the right implements is spent

The specified number that the right implements is spent is to show investor is right the investment of new project, OK and preferential undertaking the whole thing still is entirely can the scale in the limit of with its hold equity is preferential investment.

(1) the forehead of first investment spends investor to was not restricted. Namely investor can undertake be addinged entirely to new project endowment.

(2) the forehead of first investment spends investor have restriction. Include normally: I) investor is spent in original investment inside enjoy precede over the investment of other investor counterpoises; Ii) the scale that investor opposes equity to hold company equity total by its, the first investment that enjoys pair of new projects counterpoises.

The 13 authority that register

The authority that register (Registration Rights) it is the concept below American law, it is by American federal negotiable securities law and American negotiable securities trade committee (SEC) a provides right. Because be in the United States to be not all common stock stocks,can trade freely, trade freely to make oneself stock OK so, investor can ask the company has the share registering normally, this right calls the advantageous position that register.

The concept of the 1 authority that register

Law of American negotiable securities is issued to the stock and trading have certain restriction, if the emission of the stock was not registered to SEC, criterion these stocks are restricted stock namely (Restricted Share) , cannot be in open market (Public Market) trade, although this company is public company not exceptional also. Because be in the investment of the illicit collect form such as venture capital investment, what investor obtains is restricted stock, the optimal means that obtains fluidity so asks the company is in these restricted stocks namely SEC undertakes registering, then the share of investor partner just can trade in security market freedom.

The action of the 2 authority that register

The authority that register is one of the most important rights in financing. If investor equity scale belongs to minority in poineering company, criterion their capital is exited should depend on the decision of other shareholder. Company virgin shareholder is running way, exit the major problem such as the opportunity to go up to produce conflict unavoidable with investor partner, investor is exited to make sure he is OK and successful, normally meeting requirement has equity registering. So, the authority that register is a kind of means that investor partner exits substantially.

Investor asks the company has the share registering in SEC, can trade freely through the share that register and can be being exchanged or trade in the system (for example new York negotiable securities trades center or Nasidake) run. The share that only the course is registered just can appear on the market trade, because the market bears to what IPO issues a share,be ability is finite, investor is registered and marketable equity is restricted strictly, and the share that does not register is to cannot appear on the market current.

The classification of the 3 authority that register

1, the requirement registers authority (Demand Registration Right)

It is OK to ask the authority that register is to point to investor the right that the share that compulsive company buys his has registering appearing on the market. This right becomes public company in the company (namely IPO) , before after mixing, exist, if the company still does not have IPO, so if investor asks to implement the power that register, the company must want those who undertake IPO to run at the same time.

Those who ask to register authority is common state:

In company ⅰ ) after complete a business transaction is finished inside 6 years, or ⅱ ) issue publicly first (IPO) inside 6 months after, hold company the person can register negotiable securities of 25% can ask the company of its hold share undertakes complete enrollment is registered, the emission that registers every time amount cannot little at 5 million to 10 million dollars.

2, register authority jointly (Piggyback Registration Right)

Register authority photograph to compare jointly at asking to there is certain flexibility for the authority that register, be when showing investor undertakes IPO in the company, can ask its the stock has the right that register. With the requirement the authority that register differs, register authority not to give investor to ask the company has the right of IPO actively jointly, and when allowing them to undertake IPO in the company merely, have their equity registering together.

What register authority jointly is common state:

The partner that can register share will be in a company when all registering, have " register authority jointly " , but company and bear sell business to be able to be based on bear the judgement that sells business, reduce the share amount that its register in proportion, the share amount that register not 30% under total share.

3, S-3 or F-3 register authority (S-3/F-3 Registration Right)

S-3 or F-3 form are registered allow investor to ask the company has its share S-3 form undertakes registering. S-3 form is the registering way with a kind of S-1 that uses than IPO or F-1 simple table. S-3 or F-3 form are registered is to be in a company to become public company 12 months or longer a kind of later means that register.

What S-3 form registers is common state:

The 10% partner that can register equity have hold power demand company undertakes S-3 form is registered, the accumulation that can register equity value not less than 5 million dollar. The time that S-3 form registers does not have limitation, but do not exceed every year twice.

On put together, above registers authority 3 kinds in, OK and simple understanding is: Ask the authority that register is the right before company IPO, registering authority jointly is the right when company IPO, s-3 or F-3 register authority is the right after company IPO.

The 4 clauses related to the authority that register

1, the charge that register

All charge that register (include share to transfer tax, bear sell discount and acting cost) assume by the company. The fee that the company should pay a delegate all lawyer that enlists partner at the same time does not exceed 50 thousand dollar and other and reasonable cost.

2, equity lock is decided

In issue first new (IPO) when, if ask via presiding consignee, investor ought to agree, in issue first new (IPO) any common stock stock that do not sell inside 180 days after or transfer a company, (the condition is, all trustee of the company, the partner of director and 1-5% also agrees to suffer same equity to lock up calm agreement to restrain) . Once reach,this equity lock decides an agreement, make clear namely, to company or the limitation that consignee represents this agreement that make the clause makes any abandoning or stop measure, should accord with be based on place to hold share in proportion calculative is main the opinion of investor. "Main investor " it is to show hold A is preferential portion is at least [] any investor of the dollar.

Negotiation of clause of the 5 authority that register wants a place

In practice, the main matters concerned that both sides discusses includes the number that register, the time of exercise of the authority that register, the equity scale that counterpoises all right and lowest issue the forehead to spend wait for a problem.

1, the time that register. Because register,be one is cost and expensive work, the company often is registered to investor only, and investor can ask twice to register normally.

2, travel authority time. To inchoate investment, the requirement is registered just carry out 5 years likely after investing complete a business transaction; To terminal investment, term will be a lot of shorter, basically depend on the time that expects IPO. In addition, the authority that register is after IPO cannot carry out in period of time normally (like 6 months inside) .

3, the equity scale that counterpoises all right. The authority that register must by the partner exercise that owns equity of certain lowest scale at least in the company, the company often hopes this scale is sufficient tall, make certain small shareholder cannot exercise this right, this scale can is surely normally 25% the left and right sides.

4, lowest issues the forehead to spend. Cost as a result of what register very big, the company should give set of the authority that register lowermost condition, the lowest price in practice is preferential normally buy the price 3 to 5 times, aggregate issue the forehead to be 20 million dollar or more.

[sum up]

Unscramble through what above invests priority item to illicit collect equity, the risk that the place of problem of inherent information asymmetry that we think in will investing, priority item can exist brings is casting be in harmony undertake allocation effectively between both sides, have certain rationality and proper sex, it is the contract is reflected freely. Hope the both sides that cast be in harmony can choose beneficial to oneself priority item, as far as possible avoid invests medium risk, safeguard oneself to close right increase.

Author introduction:

Office of Shanghai of partner of Shang Haodong's lawyer

Business domain: Illicit collect equity and investment fund, capital market / negotiable securities, buy annex

Department of market of capital of office of Shanghai of Liu Qiuping's lawyer

Department of market of capital of office of Shanghai of Xu Mi's lawyer

Department of market of capital of office of Shanghai of Huang Yun's lawyer

Department of market of capital of office of Shanghai of Suo Hui tung

The hole sees capital academy arranges an editor, reprint require authorization