- 英文摘要
- The VAM agreement (Valuation Adjustment Mechanism) is a unique transaction mechanism in private equity investment in China. Its primary purpose is to address the common issue of information asymmetry in the startup sector while providing financing support to entrepreneurial companies. Due to the early-stage nature of startups and their lack of transparency, investors often face challenges in risk assessment. The core of the VAM agreement lies in the agreement between investors and entrepreneurs on future performance targets. If the targets are not met, the entrepreneur must assume specific responsibilities or compensate the investors. However, due to ambiguous legal regulations and inconsistent enforcement, the application of VAM agreements in China has sparked considerable controversy.
In judicial practice, the validity of VAM agreements is at the center of disputes. In the “Haifu Case”, the court ruled for the first time that VAM agreements were invalid, a decision that had a profound impact on both academic and practical circles. The “Ninth Conference Minutes” a document issued by the Supreme People's Court to unify judicial standards, sought to resolve related disputes and establish the validity criteria for VAM agreements. However, the practical implementation still faces the dilemma of “contracts being valid but unenforceable”, indicating that the mechanism has not yet fully reconciled legal implementation with market needs.
Moreover, the application and regulation of VAM agreements differ significantly between China and Taiwan. Taiwan’s legal framework for supporting the startup sector focuses on the use of preferred shares. With their flexibility and legal safeguards, preferred shares serve as an effective tool to balance the interests of entrepreneurs and investors. Compared to VAM agreements, preferred shares involve lower operational risks and less controversy. Replacing VAM agreements with preferred shares as the subject matter of investment contracts can reduce legal disputes arising from performance disagreements and enhance the stability of the investment environment.
This paper compiles relevant rulings and academic discussions in China to explore the legal basis and practical application of VAM agreements and contrasts these with cases from Taiwan. It aims to provide references and suggestions for domestic businesses and judicial practices, including improving legal frameworks, optimizing contract terms, establishing judicial and administrative support measures.
In conclusion, the development of VAM agreements in China reflects the ongoing reconciliation between market forces and legal systems. Their effective application requires a balance between the legal framework and market demands. By comparing Taiwan’s preferred share system with Mainland China’s practical experiences, more effective financing solutions can be provided for the startup sector, thereby promoting the joint economic progress of both sides.
- 目次
- 目 次
壹、問題提出
貳、對賭協議發展現況
參、2010年對賭第一案－「海富投資案」
一、案例事實
二、歷審判決
三、小結
肆、九民紀要
一、對於「對賭協議」的影響
二、本文評析
三、小結
伍、臺灣公司法之借鏡－「康力生技」案為例
一、案例事實
二、小結
陸、中國大陸公司法2023年之修正－以優先股為核心
一、修法背景
二、類別股修法演進
三、本次修法重點
四、小結
柒、結論
一、對賭協議在現行公司法上的困境
二、以特別股作為對賭協議標的
三、特別股回購仍應遵循償付能力測試
