China: 股东在企业IPO前隐瞒"抽屉协议"的法律风险分析

Last Updated: 22 November 2019
Article by Hu Canlian and Chen Wei
Most Read Contributor in China, November 2019

企业首次公开发行股票并上市(IPO)前通常会对投资人与拟上市企业及/或控股股东签署的对赌协议进行清理,对于存在代持情形的股东持股情况,也通常会进行代持还原处理。股东在企业IPO申报前也会出具一系列承诺文件,如不存在对赌安排的承诺、股份真实不存在代持情形的承诺等。但在实践中,即便股东出具相关承诺,也存在不少对赌协议或代持协议未真正清理的情形,在股东故意隐瞒的情形下,仅靠企业及中介机构核实存在一定难度。在笔者参与的部分IPO项目中,也存在拟IPO企业的部分股东咨询解除对赌协议或代持协议的原因和不予解除的法律后果。本文主要对股东在出具相关承诺的情况下,向拟IPO企业(以下称为"发行人"、"目标企业")隐瞒对赌协议、代持协议两种协议(以下合称为"抽屉协议")的法律风险进行梳理分析,以期抛转引玉。

一、抽屉协议在企业IPO上会前被知悉的后果

1.关于对赌协议的处理

根据证监会发行监管部于2019年3月25日发布的《关于发布<首发业务若干问题解答>的通知》规定:"问题5、部分投资机构在投资发行人时约定对赌协议等类似安排的,发行人及中介机构应当如何把握?答:投资机构在投资发行人时约定对赌协议等类似安排的,原则上要求发行人在申报前清理,但同时满足以下要求的可以不清理:一是发行人不作为对赌协议当事人;二是对赌协议不存在可能导致公司控制权变化的约定;三是对赌协议不与市值挂钩;四是对赌协议不存在严重影响发行人持续经营能力或者其他严重影响投资者权益的情形。保荐人及发行人律师应当就对赌协议是否符合上述要求发表明确核查意见。发行人应当在招股说明书中披露对赌协议的具体内容、对发行人可能存在的影响等,并进行风险提示。"

因此,如股东签署的对赌协议在发行人IPO上会前被发行人或监管部门知悉的,发行人需如实披露对赌协议的内容。除非对赌协议条款满足《关于发布<首发业务若干问题解答>的通知》问题5规定的四个条件,否则需在IPO上会前予以清理。

2.关于代持协议的处理

《首次公开发行股票并上市管理办法》第十三条规定:"发行人的股权清晰,控股股东和受控股股东、实际控制人支配的股东持有的发行人股份不存在重大权属纠纷。"《证券法》第十二条规定:"设立股份有限公司公开发行股票,应当符合《中华人民共和国公司法》规定的条件和经国务院批准的国务院证券监督管理机构规定的其他条件。"第六十三条规定:"发行人、上市公司依法披露的信息,必须真实、准确、完整,不得有虚假记载、误导性陈述或者重大遗漏。"

基于上述规定,公司上市发行人必须股权清晰,且股份不存在重大权属纠纷,并公司上市需遵守如实披露的义务,披露的信息必须真实、准确、完整,这是证券行业监管的基本要求,也是证券行业的基本共识。发行人股份必须真实,并不允许发行过程中隐匿真实股东,否则公司股票不得上市发行,通俗而言,即上市公司股权不得隐名代持。

因此,如股东签署的股份代持协议在发行人IPO上会前被知悉的,就发行人是否满足股权清晰的发行条件可能会受到证监会的关注和质疑,通常情况下,股份代持协议需在IPO上会前予以解除,股份需予以真实还原。

二、抽屉协议在企业IPO成功后的效力认定

对于通常情况下的股权代持协议或对赌协议的效力认定,司法界已有很多案例可以作为参考,但是对于在企业IPO过程中,股东隐瞒相关协议并向发行人出具相反的承诺的情况下,在企业成功上市后,又因相关协议产生争议时的协议效力认定问题,笔者认为不宜直接按照通常的代持协议、对赌协议的效力认定规则认定,而要结合上市监管规定具体分析。

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