| 英文摘要
| As a valuation adjustment mechanism, the VAM agreement (also called gambling agreement) is adopted by both financier and investor in fear of the future uncertainty in the evaluating of financing companies, it is commonly used as contractual clause in private equity investment in mainland China.
The investing and financing parties who signed the VAM agreement will previously set targets such as to achieve certain company performance, to be listed, and then they could adjust the valuation of the company depending on whether the target can be achieved.
This corrector mechanism can on the one hand eliminate the concerns of both parties that the value of the enterprise is overvalued or undervalued, and on the other hand, it can encourage the financing party to operate prudently in order to achieve the goal that has been set.
In addition, based on its financial investment nature of private equity investment, although the investors invest a lot of money, they do not want to participate in the daily operations of the company. They participate only in few votes in which essential issues as separation and merger of enterprise are involved, therefore the financing party can obtain financial support for development of the enterprise and at the same time maintain the control of the enterprise.
As such, in combination with preferred stocks, convertible bond and other hybrid financing instruments with characteristics of both obligations and equity, this innovative financial instrument of VAM agreement has become widely used in the field of private equity investment on the capital market of mainland China.
However, the inherent valuation adjustment mechanism in the VAM agreement is prone to legal risks in the current legal system, especially when an unwritten rule has been formed in judicial practice after the re-trial judgment of the Suzhou Haifu case, which is called the “first case of VAM”: the court judged the VAM agreement ineffective with regard to the company, but effective with regard to the shareholder. Nevertheless, this question has been controversial in the practice and in academia. The author believes that this judgment is too arbitrary to be unbreakable, and the effectiveness of VAM agreement requires in-depth research and detailed argumentation.
This paper takes the VAM agreement as the object of research. Firstly, it analyzes from a theoretical perspective the background of private equity investment in mainland China, the concept, type, cause of formation and legal nature of VAM agreement, since the accurate judgment of legal nature is fundamental to the study of its legal effect.
Secondly, the paper will introduce the status quo of VAM agreement in mainland China from the aspects of the operation mode, frequently-used terms and other investment tools in combination with the VAM agreement; then, by sorting out the verdict on the legal effect of VAM agreement in judicial and arbitral practice and by balancing the divers theories and the needs in practice, the paper will analyze the legal effect of different types of VAM agreement in the current legal system from the perspective of contract law and corporate law.
Finally, this paper draws on the enlightenment of American practice and combines the current judicial environment in mainland China to find out which is the judicial path it should follow in the judgment of the effectiveness of VAM agreement. |
