| Traditional way of financing mainly includes the creditor's rights financing and equity financing,financing in the form of the former is the enterprise by borrowing to the creditors according to the agreed upon the expiry of the debt servicing financing way;The latter refers to the company to raise funds to shareholders,shareholders according to the company's operating earnings for financing.With the continuous development of financial theory,financial products innovation,mezzanine financing arises at the historic moment.Characteristics of the mezzanine debt financing and equity financing,refers to the risk and return between debt financing and equity financing of a way of financing.But as for the practice of mezzanine finance in our country,our law to issuance of standardization of mezzanine financing tools main body qualifications the demand is higher,the standardization of small and medium-sized enterprise cannot meet the issue of mezzanine financing tool conditions.Preferred stock,convertible bonds,for example,the current law in China will be preferred stock issuers limited to listed companies and non-listed public company,the convertible bond issuers is limited to the excellent performance of large listed companies is not only failed to play a mezzanine financing tools with the improvement of company performance,enhance the company's management motivation,the positive role of increasing the utilization efficiency of funds,has become the distribution condition of the company meet the mezzanine financing tool with low cost of capital financing and a monopolistic way,leading to the broad masses of small and medium-sized enterprises and high-tech enterprises through mezzanine financing tool.In addition,even if the financingenterprises can meet the issuance requirements of the standardized mezzanine financing tools,due to the laws and regulations of excessive interference of mezzanine financing companies also through standardized mezzanine finance tools to implement personalized hard financing purpose,from the preferred shares,convertible bonds financing tools such as operation,standardized mezzanine financing tool is difficult to take advantage of the flexibility of the mezzanine finance itself.Non-standard mezzanine finance more performance for through trust plan,information plan and other structured products as well as the establishment of mezzanine fund sign mezzanine financing contract for investment and financing enterprises,the main specific arrangement as preferred dividends and preferred liquidation,fixed income commitment,share repurchases,etc.,due to its specific contract including terms of preferred dividends and preferred liquidation,equity buy-back terms,fixed income,etc.In terms of the preferred dividends,although the company did not make clear a regulation,from the legal considerations,it is determined through negotiation between the shareholders,and dispose of their legitimate rights and interests as a result,corporate profits and the internal distribution of sequential adjustment does not affect the interests of creditors and the law should allow the company autonomy between the shareholders,therefore its validity should be recognized.In terms of the preferred liquidation,due to its violation of the company law in our country about the effectiveness of the company liquidation is mandatory,so should deny its validity.In terms of the share buyback,by the company to repurchase the share buy-back clause for violating the company law in our country about the mandatory provisions of the share buyback and invalid,and by the company's major shareholders to repurchase equity buy-back clause in shareholder's equity transfer behavior between avoiding the limitation of the company may not buy back their own shares in principle,without other situations to violate the law,this agreement shall be effective.For fixed income terms,due to the changes of Chinese civil law theory,while the associated contract valid state judicial interpretation is still processing,but in accordance with the rules of the applicable law,for joint contract in the judicial interpretation about fixed income provision invalid,should further understanding,can't all be applicable.Financing business for the company's situation with the fixed income investor signed terms are not usually present,smoke escape capital contribution of shareholders by abusing the shareholder rights,to be effective,just in the mezzanine investors guaranteed income continuous implementation on aregular basis,and the company is not enough to cover expected earnings gains or losses,financing enterprises perform the fixed income could be identified as belonging to "smoke escape capital contribution of shareholders".Specification standardization mezzanine finance should abandon the father loves the law position.Standardization of mezzanine financing carrier legal norm should be equipped with appropriate mandatory rules and demonstration.Law should allow market main body according to the reasonable rules agreed content in business practice,for there is no need to make a mandatory provisions of the content,can choose demonstration rules to guide investment and financing of both sides.At the same time to protect the rights and interests of investors and creditors,standardized mezzanine carrier needs as the legal norms of refinement of financing enterprises meet the requirements of the information disclosure of the content,procedure and guarantee related benefit main body right to know of financing enterprises operating conditions.And specifications of non-standard mezzanine finance should focus on commercial Angle value.For the parties to a mezzanine finance create new trading rules,the evaluation criteria should be from the transaction cost,social cost and legal supervision cost three aspects are analyzed.First of all,from the point of view of the market transaction cost,mezzanine creating legal system outside the new trading rules out more pragmatic efficient than the trading rules set by the law.Secondly,from the Angle of social costs,mezzanine finance enterprise if it is closed,the equity transfer is mainly related to the adjustment of internal economic interests between the shareholders,and does not involve the third person outside of the company,little influence to the social public interests;Fixed income provision is a measure of the equity value of the company to fix,the purpose is to the company's actual controller for incentive and constraint,make efforts to business enterprise to realize the rapid development of the enterprise itself,the internal control mechanism of adjustment if as fundamental purpose,is good for everyone.So,the particularity of mezzanine financing contract terms arrangement doesn't increase financing enterprise external social costs.Mezzanine finance enterprise if it is a public company,due to the free transfer of shares in order to avoid the internal interest distribution of the infringement to the external interests of a third party,shall be carried out within the framework of legal interests distribution and other matters of investment in Settings.At this point,should be through the company's shares of category system of multi-layer financingstructure,adopt to realize the difference of content between shareholders,but this kind of difference on the disclosure of information is public,investors can know,choose.Finally,from the Angle of legal supervision cost,in the case of financing enterprises for the closed company,investment and financing between the two parties agreed "autonomous behavior anomie",belongs to the shareholders' rights and obligations of internal distribution,before there is no dispute into judicial view,law don't know,more can't supervise.When financing enterprises for public companies,have mandatory disclosure,at this point,when the mezzanine financing contract terms involved in violation of the corresponding legal supervision can play a role,and the supervision cost of pay is meaningful. |
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