在经济下行的时候，原来一些质地不错的企业也会陷入困境。对于困境企业而言，通过破产重整焕发生机，也许是最后一根救命稻草；对于投资人而言，未来真正的赚钱机会，也将出现在更多、更复杂的破产重整项目中。今天，我想跟大家谈谈破产重整投资的趋势、挑战与未来。

一、重整投资的趋势

首先，我们来谈谈重整投资已经展现出的四个变化趋势。

第一个趋势，是从被动投资到主动投资。

什么是被动投资？以往一些破产项目中的重整投资人，往往本身就是破产企业的债权人，他们随着陷入危机的破产企业一起被困在了“水中”，不得不通过参与重整投资寻求最后的“上岸”机会，比较典型的就是一些作为困境企业债权人的AMC公司。

什么是主动投资？这几年里，逐渐有一些“岸上的人”也瞄准了重整投资领域。“岸上的人”，是与困境企业没有关系的外部投资人，他们没有受到困境企业的牵连，而是将重整投资视作一个宝贵的商业机会，主动参与其中。这样的“岸上投资人”，既包括产业投资人，也包括财务投资人。

1. 最实在的权利 清算优先权，或优先清算权(Liquidation Preference)，是指“清算事件”发生时，投资人在清算财产分配过程中享有优先顺位的权利。通常，越晚进来的投资人清算优先的顺位越高，但在老投资人强势时也可能会约定新老投资人之间平等顺位，按投资金额比例甚至股权比例分优先金额。相比实际上基本用不上的分红优先权，清算优先权是更实用、也更可能给投资人创造实际价值的经济权利。

2. 好坏通吃 清算优先权可以在公司情况不佳(downside)时让投资人优先拿回一点补偿，也可以在公司获得好的收购机会(upside)时使得投资人获利更多。

3. 只是清算？ 如果“清算事件”仅包括法律意义上的清算(例如公司解散或破产时的清算)，那实际用途不大，关键是它还包括“视同清算事件”。“视同清算事件”的情形通常包括导致控制权变更的合并、收购，以及出售、租赁、转让、以排他性许可或其他方式处置公司全部或大部分资产的事件。考虑到解散或破产清算时公司多半已经没有太多资产可分，发生并购事件才是清算优先权最大的用武之地。

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Sale at an undervalue

In Butterfield Bank (UK) Ltd v Philip and others, the bank sought summary judgment against four guarantors of a bank facility. It was alleged that the bank had sold a property at a £500,000 undervalue.

Notice of assignment

Notice of assignment can be given by either the assignee or assignor under the Consumer Credit Act 1974 (CCA).

This was the High Court's finding in Smith v 1st Credit (Finance) Ltd and another. Smith was notified by her credit card company that her credit card debt had been assigned to 1st Credit. 1st Credit wrote to Smith shortly afterwards confirming the assignment and advising how payment could be made. Smith failed to pay and was made bankrupt by 1st Credit which subsequently repossessed and sold Smith's property.

The court will unravel a transaction where it appears to have been entered into to place assets beyond the reach of creditors.

This was the case in Ambrose sub nom Garwood v Amborse & Ambrose, where the trustee in bankruptcy of Mr Ambrose applied for declaratory relief and an order for the possession and sale of Mr & Mrs Ambrose's property.

In Rhinegold Publishing Ltd v Apex Business Development Ltd, Rhinegold and another company owed debts to the defendant in the sums of approximately £22,000 and £31,000 respectively. The defendant presented a winding-up petition against both companies which resulted in settlement being reached. The settlement provided that the companies would pay off the debts owed in full by monthly payments and that no proceedings would be issued in relation to the debts referred to in the original statutory demand if payment was made.

Where there is no evidence of lack of authority in placing orders which have not been paid, the court refused to allow an injunction to restrain a winding-up petition.

In the matter of A company (2012) (the company), a creditor had issued a statutory demand against it in relation to invoices for advertising placed with it by the company's sales and marketing manager (M) that were unpaid. The company argued that those orders had been placed without its authority and M admitted that she had exceeded her authority in so placing them.