| Regarding equity buybacks,they can be divided into equity buybacks of listed companies(joint stock companies)and equity buybacks of limited liability companies.This article focuses on the issue of the fulfillment of the equity repurchase clause agreed in the betting agreement signed between the company and the investor in the pre-listing financing segment of the limited liability company.The introduction of the Ninth Minute has made a determination of the validity of the betting agreement,i.e.,whether the bet is made with the company or with the shareholders,the agreement is valid in the absence of other invalidating circumstances.At the same time,however,the regulations impose requirements on the performance of the equity repurchase clause agreed in the agreement.That is,if the company and the company signed a betting agreement,the company agreed to buy back the equity,only when the company has completed the capital reduction procedures,the agreed equity buy-back provisions have performability,otherwise,the court will find that the agreement is valid,the court will reject the investor’s claim on the grounds that the provisions do not have performability.The reason for the unfulfillability of the equity repurchase clause is mainly from the perspective of corporate law,taking into account the principle of capital maintenance and the creditor protection system.Then whether the company’s repurchase of equity really affects the company’s capital maintenance principle and whether there is really a conflict with the creditor protection system.In this paper,we analyze the capital maintenance principle and the creditor protection system,and analyze theoretically that the company’s repurchase of equity actually does not necessarily have obstacles to fulfillment.The uniform requirement that the company can repurchase the company’s equity only in the case of completing the capital reduction procedure lacks certain rationality.In addition,on the issue of equity repurchase does not exist in the performance of the problem,some scholars believe that the equity repurchase belongs to the debt of money,and therefore does not apply to the performance of the inability.However,the authors believe that the debt of equity repurchase cannot be simply identified as a monetary debt,but should be discussed in terms of the dual regulation of corporate law and contract law.As to whether a company can make an equity buyback,a specific determination should be made based on the specific circumstances.Specifically,we may determine whether the company has sufficient funds for the equity repurchase and the specific agreement in the betting agreement,and whether there are obstacles to the performance of the procedures for the capital reduction.In the case where available funds can be provided as the equity repurchase price,and where a capital reduction procedure has been agreed upon in advance,there is no obstacle to performance and the equity repurchase should be performed.This is also consistent with the spirit of the Jiumin Minutes.To effectively ensure the performance of the equity repurchase is not only to protect the interests of the investors,but also to enable the commercial subjects to realize their true intention and achieve their reasonable expectation at the time of signing the agreement,thus further promoting the active capital market and the reasonable deployment of resources. |
