“新型对赌投资协议”引发争议 业内：“穿透式监管”与“技术赋能”成破局关键

Core Viewpoint - The private economy is a vital component of China's socialist market economy and plays a crucial role in promoting modernization and high-quality development. The implementation of the Private Economy Promotion Law on May 20 marks a new level of legal protection for the private sector, but the rise of new types of performance-based agreements linked to secondary market stock prices poses challenges for market order and sustainable development of the private economy [1]. Group 1: Issues with Performance-based Agreements - The focus of controversy is whether performance-based agreements linked to secondary market stock prices are valid. Despite regulatory guidelines requiring the clearance of such agreements before IPOs, many companies find ways to circumvent these rules [2]. - A notable case from the Shanghai High Court in 2021 deemed a performance-based agreement invalid due to its violation of public order and securities regulations, but there is still ambiguity regarding agreements made verbally before IPOs and formalized afterward [2]. - Experts warn that if certain behaviors are accepted in judicial practice, it could lead to industry-wide disorder as more investors may view these actions as tacitly approved by law [2]. Group 2: Negative Impacts on Companies - Experts agree that agreements linked to market capitalization can pressure companies to sacrifice long-term strategies for short-term stock price targets, leading to potential manipulation of stock prices and harming the interests of small investors [5]. - The venture capital landscape has changed significantly, making traditional performance-based agreements less applicable, as the growth cycle for "hard tech" projects has lengthened and the IPO environment has tightened [5]. - Allowing controlling shareholders to privately reach performance agreements with investors undermines board decision-making and stifles innovation within companies [5][6]. Group 3: Proposed Solutions - Experts advocate for a comprehensive governance system that combines "penetrating regulation" and "technological empowerment" to address these issues. This includes establishing a protocol for real-time registration of all performance agreements with regulatory bodies [7]. - There is a call for strict prohibition of any form of evasion of disclosure requirements and for the establishment of a core principle that post-IPO agreements are invalid [7]. - The urgency of breaking the cycle of inconsistent regulations and judicial standards is emphasized, with a focus on the need for collaboration between regulatory and judicial entities to ensure effective enforcement [8].