| The supreme people's court in "PE" bet on the first case,decided on the agreement whatever gansu the constant company operating earnings,suzhou sea rich company shall be entitled to compensation received from gansu the constant company,this convention makes suzhou sea rich company investment can achieve a relatively fixed income,the income from the gansu the constant of the company's operating performance,damage the interests of the company and the company creditors,on the basis of "company law" the provisions of article 20,ruling with the company's bet on part of the agreement shall be invalid.Sparked domestic academia about how bet agreement legal controversy.Concluded there are three main views: one is the contract effective theory;Theory is a kind of contract is invalid;There is a contract partially effective theory.Reference in the legal regulation of private equity investment in the United States,mainly through the investment and ratchets,Earout system,etc.,to adhere to the legal system of capital of the company.The author thinks that as long as the bet agreement does not violate the company's statutory capital system of "capital,capital support,capital the same certainty" three principles,bet against the agreement is effective.But from the perspective of practical application,the following ways can be used,for example: the early should be adequate due diligence;Rather than choose the arbitration jurisdiction under the jurisdiction of the court;If you choose the jurisdiction of the court,with the company's founding shareholders and management should be adopted to bet against the design;In comprehensive consideration should be paid attention to bet against the agreement to keep the company capital to maintain the principle of the injection of new funds and convertible bonds,and attached some flexible terms,let investors have the double identity of shareholders and creditors,to maximize the safeguard the legitimate rights and interests of investors. |
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