2014年5月15日 环球法律专递 Global Legal Updates
对赌条款的法律风险防范
——以司法实践为视角
作者：孙海珊｜张韬
近日，中银国际旗下海外投资机构Apollo Investment Asia Limited（下称“阿波罗”）向法院提交了启动赛维LDK太阳能公司（下称“塞维LDK”）的实际控制人彭小峰个人破产程序的申请。据媒体报道，阿波罗之所以提交前述个人破产申请，是由于赛维LDK未能实现其在2011年签署的投资协议中对阿波罗所作出的“下属公司两年内实现分拆上市”的承诺。根据该协议，彭小峰作为塞维LDK的实际控制人向阿波罗承担现金补偿的连带担保责任。
这一带有明显对赌色彩的协议安排，再一次引起了各界对“对赌条款”效力问题的关注及讨论。因此，本文拟以近年来受到广泛关注的几起与“对赌条款”有关的案例作为基础，就中国司法实践对“对赌条款”这一常见的商业安排的影响及启示进行简要的梳理和讨论。
案例简介
Payment of debts to individual creditors (hereinafter also referred to as “individual payoff”) refers to the debtor’s payment to individual creditors when the debtor is already subject to bankruptcy because of a certain reason. The P.R.C.
On 11 June 2014, the Supreme People's Court of the People's Republic of China ("PRC" or "China") handed down its ruling in the case of Sino-environment Technology Group Limited ("Sino-environment") v Thumb Env-Tech Group (Fujian) Co., Ltd ("Thumb").
On March 7, 2014, the State Council released its Opinion on Further Optimizing the Market Environment for Corporate Merger and Restructuring (Guo Fa [2014] No. 14, “Circular 14”), to improve the institutional mechanisms and policies that encourage corporate mergers and restructuring. Circular 14 gives overall guidance on special treatments for merger and corporate restructuring transactions with regard to enterprise income tax (“EIT”), land value-added tax, value-added tax and business tax.
An insolvency administrator has been sentenced to 11 years of imprisonment for obtaining RMB1.3 million in bribes. Huang Zhicong (“Huang”), former vice-president of Building Materials Corporation in Shaoguan City of Guangdong Province, was the insolvency administrator of Shaoguan New Sunlight Textile Enterprise Co., Ltd. (“New Sunlight”).
The Judicial Committee of the Supreme People’s Court has passed a notice regarding overdue fines on unpaid taxes of a bankrupt enterprise. This came into effect on 12 July 2012.
- Background
Company A is a foreign enterprise whose business is the production of certain specialist machinery. In China, only approved entities which are on a list compiled by the department in charge are permitted to manufacture such machinery. Company B, a Chinese enterprise, is one such entity. To enter the Chinese market, company A signed a joint venture agreement with company B in 2007. Each company agreed to contribute capital to establish a joint venture to manufacture such machinery.
A mandatory bid (or a mandatory general offer obligation) ("GO Obligation") will be triggered if a controlling block in a listed company ("Controlling Block") changes hands.
The chain principle summarised
On April 30, 2009, the Ministry of Finance (“MOF”) and the State Administration of Taxation (“SAT”) jointly issued Caishui [2009] No. 59 (“Circular 59”) to set out the guidelines on the income tax treatment of enterprise reorganizations (please refer to our China Tax Bulletin May 2009 for more information about Circular 59).
OVERVIEW
This note outlines the various formal insolvency proceedings available in the People's Republic of China (excluding for purposes of this guide, the special administrative regions of Hong Kong and Macao and the territory of Taiwan) ("PRC").