In The Theory Of Private Equity Stake Repurchase Agreements

Private equity repurchase agreement refers to the financing side of the non-public offering of shares to raise funds.In order to reduce the investment risk,the investor shall,at the time of signing the equity transfer agreement,agree that under certain conditions the investor may require the financing side to repurchase the agreement on the equity of the transferee.Theorists believe that the equity repurchase agreement is a kind of gambling agreement.I think such a definition is not comprehensive.Therefore,in order to define the private equity repurchase agreement,this paper is divided into five parts to discuss the legal disputes related to the private equity repurchase agreement.The first part is the definition of share repurchase agreement.In this part,the author discusses the concept of equity repurchase agreement and the agreement on gambling is two different concepts.The share repurchase agreement is divided into the equity repurchase agreement with the term and the conditional repurchase agreement.Conditional equity repurchase agreement is the repurchase agreement and the cross section of the gambling agreement,with the duration of the equity repurchase agreement is not an agreement on gambling.The second part is the confirmation of the effect of the duration of the share repurchase agreement.First of all,the term of the share repurchase agreement in determining what is attached to what is attached to the conditions on the difficulties.With the term of the share repurchase agreement is the term,the investor may require the financing side to repay the debt in the way of repurchase equity.The arrival of the term in such an agreement is certain,with certainty.It is worth noting that the judgment of the inevitability of the period should be from the contract to determine the time,and the purpose of the two parties,can not be engaged in the subsequent overthrow.Secondly,there is a dispute over the nature of the term repurchase agreement.The author believes that the term of equity repurchase agreement does not belong to the investment agreement.The third part describes the effect of conditional equity transfer agreement.This part is divided into the share repurchase agreement with the company and the equity repurchase agreement with the company's shareholders and actual controllers according to the different nature of the main body of the financing.And the shareholders of the Target Corp,the actual control of the equity repurchase agreement signed between natural persons is purely voluntary investment activities,as long as the parties reach an agreement,there is no reason of legal contract is invalid,the law should protect this kind of behavior,encourage commercial transactions.However,the effectiveness of the repurchase agreement signed with Target Corp,the people's court has different views of the referee.An equity repurchase agreement with a limited liability company may not be limited to the special circumstances specified in the company law of the People's Republic of China.The other is that both the repurchase agreement signed with the limited liability company or with the Limited by Share Ltd had been damaged by the interests of the company and creditors.The author believes that the reasons for the invalidity of the contract are only five of the provisions of article fifty-second of the contract law of the People's Republic of China.In the share repurchase agreement,as long as the share repurchase agreement signed with the Target Corp does not harm the public interest does not violate the law,administrative regulations should not be easily denied its effectiveness.The fourth part summarizes the most common legal disputes in the private equity repurchase agreement on the basis of combing the relevant cases:(one)the difference between pledged loans and guarantee;(two)a new interpretation of the loan pool;(three)the effect of the repurchase agreement involving the equity of state-owned enterprises or the transfer of shares of foreign funded enterprises.The parties advocate that the equity repurchase agreement is essentially a pledge loan or transfer of security,but with the conditions of the equity repurchase agreement for the commercial investment agreement does not exist in the main contract,collateral from the contract can not speak of.The term of the share repurchase agreement is not a pledge loan contract or a contract for the transfer of security,but the quality of the loan contract is only a new type of loan contract with the provisions of the guarantee function.Involving equity shares of state-owned enterprises or foreign-funded enterprises transfer effect is the most controversial repurchase agreement fails to fulfill the validity of registration approval will affect the contract,did not fulfill the contract registration approval is not effective in the state but still binding on both parties.The fifth part is the conclusion of the article,the last point of view of this article.And at the end of the form with the form of the reference of the people's court case.