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北京急速赛车彩票:Failure rate high VC / PE "bet" predicament

时间:2018/3/5 18:25:12  作者:  来源:  浏览:0  评论:0
内容摘要: CCB Culture v. Pentium Bereavement The case of smoke has not yet dispersed. Another case of share repurchase dispute has once again touched...

CCB Culture v. Pentium Bereavement The case of smoke has not yet dispersed. Another case of share repurchase dispute has once again touched the nerve of VC / PE: On the eve of the Spring Festival this year, Feng Sheng Investment will put the new three-board enterprise green Cai and its controlling shareholder sued Tianhe District People's Court in Guangzhou.

There is a key agreement in the case of a similar share buyback dispute - the "Investment Supplement Agreement." In the agreement, both VC / PE and the invested enterprise usually stipulate the financial performance and the time to market. If the performance is not as expected or the IPO fails to be listed as scheduled, the invested enterprise and major shareholder need to repurchase the shares of VC / PE or Cash compensation. According to the popular market, this is the so-called "gambling agreement."

"Betting Agreement" is actually a foreign product. Literal translation means "valuation adjustment mechanism" and is a form of option. In the equity investment activities, VC / PE does not participate in the daily operation of the target company due to the asymmetric information of both investors and financiers, and VC / PE is determined based on the preliminary performance of the invested enterprises and the fixed investment . Adjustment of prices and conditions of investment.

Reporters interviewed a number of VC / PEs and found that in order to reduce the investment risk, "betting" became part of the standard VC / PE investment. And because of the high failure rate, it has caused quite a few share buyback disputes. The well-known case of moving to the mesa is only the tip of the iceberg.

"Hanlaobaosheng" business by

"Two days ago made a 2 billion project, the beginning shareholders do not want to sign share buyback terms, I feel that they are listed companies, find money easier; could not find a suitable investor , Or signed with us.A suspension of up to 6 months, do not sign the agreement on gambling, the acquisition plan of listed companies will have to abortion. "Li Ming, a PE director in Beijing (a pseudonym) said that in order to protect the safety of investment, where the agency is playing Before the payment will be required to vote for the enterprise to sign a gamble agreement.

Currently, there are four main forms of betting, including financial performance, time to market, corporate behavior, non-financial performance, of which the first two are the mainstream games. In Lee's opinion, betting can be understood by the "supply and demand market." When the fund-raising is more difficult, the initiative comes to the investor side, which is why most VC / PE investments in the market today, especially the new three-board plan, are able to sign equity repurchase agreements with the invested companies.

Insiders believe that the design principle of gambling is similar to the unit price of sale and purchase contracts with a fixed number of occasional "Duotuishaobu" mechanism, which is a special trading model of equity. When both parties involved in the investment and financing are in dispute over the existing value of the invested enterprises, they will put the dispute points on hold, set common performance targets or time to market, and adjust the valuation of enterprises and their shareholdings in proportion to their actual performance.

For example, PE A intends to invest in the target company B, the two sides agreed a price-earnings ratio of 20 times, and annual net profit after tax of not less than 150 million yuan. On this basis, A plans to invest 500 million yuan to acquire equity: 5 ÷ (20 × 1.5) = 16.67%, of which 150 million yuan is B's performance commitment and 3 billion yuan (20 × 1.5) is its performance commitment Based on the valuation given. If the future performance is less than 150 million yuan, B will be required to return a corresponding proportion of the overpayment of investment funds or increase the proportion of holdings; if the future performance of more than 150 million yuan, A should bid to pay insufficient investment or transfer Reduce the proportion of shares.

"Betting agreement is generally not open, that is, 'drawer agreement'. After the failure of betting, if the invested companies are not capable of cash repurchase, part of the cash repurchase, or equity transfer, adjust the holding of investors Li Ming said that at present there are even some VC / PE worried about being cast by the companies do not fulfill the provisions of gambling, by pledging the shares of the major shareholders of investment companies to protect investment security.

Such "drought and flood protection" mode is sometimes considered "unfair" to the invested enterprises. A few days ago, there was an article written by a lawyer from Gu Family. According to the court cases and arbitration results that have taken effect in the current part, the effect of the agreement on gambling is basically recognized. The ex post facto claims of the target investors can not be turned into legal support. Both parties to the bet should be more rational in signing the agreement on gambling and try to avoid any subsequent disputes over the failure of the bet.

According to the insiders, the urge to urge the invested enterprises to fulfill the performance requirements of the relevant provisions of the constraints also need appropriate encouragement, fair betting should be two-way. When the invested enterprise has not fulfilled its performance commitment, it is required to pay compensation to the investor according to the agreement. When the invested enterprise overcompensates its performance commitment, VC / PE also needs to make additional contribution to the invested enterprise in accordance with the agreement.

success rate is not ideal

In fact, NVC to South Beauty, to today's Galloping Horse and Green color, in recent years the gambling dispute led to repurchase common and on the rise. The root causes of both gambling and both feel that they ate deficit and each one is not unrelated. The so-called betting protection may simply be "looking beautiful."

In early 2013, Haifu Investment Co., Ltd., known as "the first case of gambling," v. Gansu Shiheng settled the gamble. Due to the high degree of concern in the case, the judgment is also quite meaningful. The industry believes that the case established the rules in the verdict: First, the VC / PE agency equity investment in the target business, agreed to obtain a relatively fixed income from the target business and the income from the target company's operating performance of the terms, Is invalid clause; the second is when the VC / PE institution carries out the equity investment in the target enterprise, the performance compensation agreed with the entity other than the target enterprise shall be deemed as effective even if it has the nature of protection and the interests of the creditors of the company and the company shall not be adversely affected ; Third, when VC / PE institutions make equity investment in target enterprises, the investment is not recognized as borrowing because of the existence of the "minimum guarantee clause".

"According to the cases we represent, the court supports the betting bet between the investor and the majority shareholder under investee; the court has no clear opinion for the betting with the company, and the arbitration partially supports . "Li Chunbin, a lawyer at Bank of China Law Firm, said that if there is no preservation measure, such cases will be dragged on for at least a year.

The industry believes that the current lack of legal norms on the agreement on gambling makes the effectiveness of the agreement on gambling in theorists and practitioners there are still many controversies. As both the investment and financing parties agreed in the agreement on gambling that the objective of the undertaking is to conclude an agreement based on an estimation of the current profitability of the enterprise under the circumstances that the future operating efficiency of the enterprise is uncertain, the investment risk is huge and it is easy to trigger the main body of investment and financing Whether there is a major misunderstanding, was obviously unfair, fraud, coercion, risk by others, such as the effectiveness of controversy. Due to the above flaws, in the past cases of partial gambling disputes, although some courts supported the gambling effectiveness of the investors and the major shareholders of the invested enterprises, the success rate of the share repurchase was not as high as imagined.

"In fact, less than 30% of the completed gambling is done, most of the disputes are settled through private negotiation, and both parties have made some compromises and concessions to make it to the court." Even in the court, Shareholders are not able to buy back is also very difficult to solve. "Li Ming said.

Insiders said there is plenty of room for wrangling as the initial agreement on gambling agreements may not be perfect. The legal process is inherently complicated.

"The supervision in the early years is still not perfect, resulting in a lot of gambling into a 'real shares of real debt' or gambling provisions simply impractical, which undoubtedly increased the burden on the business being cast. The simplest reason, When the business in order to melt into the capital sign is simply impossible to achieve the goal, the bet must be a failure. "Xiaoqiang, general manager of Shenyang, a PE that, in terms of betting, only in line with the expected bet, plus a series of Investment management and value-added services, in order to achieve the desired results. In the view of Xiao Qiang, on the one hand, most of the funds of VC / PE institutions come from LP investors. It is the responsibility of VC / PE institutions to create investment returns for investors. To a certain extent, the method of betting on gambling ensures the return on investment On the other hand, under the specific economic background, many invested enterprises may not be able to complete their expected performance due to factors such as economic cycle, market competition and macro-economic policies, and require VC / PE institutions More tolerance, as far as possible to avoid the dispute caused by the failure of the bet.

"Part of VC / PE simply hopes to ensure high returns by betting on droughts and floods, which may be counterproductive." Insiders said that the failure of betting often accompanied by a large number of "sequelae "And expecting a piece of paper promising to safeguard its revenue, the result could be disappointing.

"In Silicon Valley of the United States, the clauses similar to the domestic agreements on gambling are redemption terms, mainly under certain circumstances, requiring large shareholders of the invested enterprises to repurchase the shares held by the investors at a fixed price, but the repurchase clause is Silicon Valley investment agreement used in the proportion of small, and the trend is less and less, "a private equity investor said.

In fact, most domestic VC / PE betting agreements are often "unacceptable" during IPO audits due to the possible existence of provisions that detract from the listed company's equity and operational stability.

"The financiers may use information superiority to make their own valuation. Currently, we mainly make the three-board Pre-IPO project, and if there is not a mechanism or clause, the investment may be difficult to guarantee." Another PE in Beijing is responsible for Liu Qiang (a pseudonym) said that the current market is still a lack of effective alternative to betting.

In this regard, Xiao Qiang believes that the root causes of gambling disputes due diligence, investment income protection solutions are also due diligence, and only after full due diligence investigation, VC / PE can give a reasonable valuation. The widely used methods of investigation in the market include interviews with the team of invested enterprises (Dong Jigao), interviews with employees, interviews with upstream and downstream customers, hiring a professional third party institution to investigate the financial affairs and historical evolution of the invested enterprises, whether there exist any debt claims of the Company and its related parties Legal disputes, guarantees and a series of circumstances thoroughly. "He also said that some PE agencies may be out of cost considerations, set up their own departments to do their best, there is no problem, the basic due diligence investigation is Competent. However, some more professional, more complex structure, more difficult to sort out the project, to the professional team to do more likely to be more secure.

"The VC / PE industry is not an industry where everyone can do it, with special emphasis on professional asset management capabilities. Due diligence is the key link in the VC / PE organization's control of risk. Is facing a major reshuffle, an investment cycle (5 years) down, the failure of the core investment institutions will be eliminated. "Jinping Chang, chairman of capital said. Xiao Qiang said the post-investment management, including the establishment and implementation of the withdrawal mechanism, is a question that every VC / PE institution should consider before examining or investing in a project. "The usual practice is to assign financial management, directors and other personnel to the invested enterprises to help them sort out specific issues such as the financial mechanism, management structure, company development orientation and operation and maintenance of the company. The post-investment management measures reflect the specifics of the VC / PE institutions Value, the biggest difference compared with the traditional claims is that VC / PE institutions not only involved in investment, but also participate in the management of the invested business, financial management, corporate governance, the direction of development and other specific matters. "


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