山东股权顶层架构设计:股权激励中能否作出上市承诺?
发布时间:2025-10-31 发布人:山东股章浏览次数:144次 来源:www.guquanzhanlue.com
上市承诺通常于拟上市公司引入外部投资人时作出,若拟上市公司未在承诺期限内完成首次公开发行股票并上市的,外部投资人有权要求拟上市公司和/或其控股股东、实际控制人等承诺主体进行股权回购或现金补偿。拟上市公司在设计股权激励方案时,可能基于特定背景考虑向全部激励对象或部分核心激励对象作出上市承诺,以下将对股权激励中上市承诺的可行性及必要进行分析,供企业家参考。
Listing commitments are usually made when the proposed listed company introduces external investors. If the proposed listed company fails to complete its initial public offering and listing within the commitment period, external investors have the right to demand that the proposed listed company and/or its controlling shareholders, actual controllers, and other commitment entities carry out equity buybacks or cash compensation. When designing equity incentive plans, companies planning to go public may consider making listing commitments to all incentive targets or some core incentive targets based on specific backgrounds. The feasibility and necessity of listing commitments in equity incentives will be analyzed below for entrepreneurs' reference.
一、特定背景当公司成长至一定阶段时,维持与公司行业特性及发展阶段相匹配的重要员工尤为关键,特别是对于那些在可预见未来内将走向上市的公司,招募具备资本市场经验的人才显得格外重要,而股权激励计划往往是吸引这类人才的关键手段。这类人才通常会对所获得股权激励的数量以及公司上市时间表给予高度关注。因此,无论出于企业自身的主动决策还是相关人员的主动要求,将公司对于上市期限的承诺明确地包含在股权激励计划之中,都可能成为一种实际需求。
1、 When a company reaches a certain stage of growth, it is particularly crucial to maintain important employees that match the industry characteristics and development stage of the company, especially for companies that are expected to go public in the foreseeable future. Recruiting talents with capital market experience is particularly important, and equity incentive plans are often a key means of attracting such talents. These types of talents usually pay high attention to the number of equity incentives obtained and the company's listing schedule. Therefore, whether it is due to the proactive decision-making of the enterprise itself or the proactive requirements of relevant personnel, explicitly including the company's commitment to the listing period in the equity incentive plan may become a practical need.


二、相关规则及案例1. 上市承诺原则上有效关于非公众公司股权激励中的上市承诺,现行法规并未明确禁止,换言之,若承诺内容不存在《民法典》规定的无效民事行为之情形的,该等承诺应当视为有效。此外,依据2019年最高人民法院发布的《全国法院民商事审判工作会议纪要》,对于投资方与目标公司及其股东或实际控制人之间订立的对赌协议,原则上认定有效,同理我们理解公司及相关主体在股权激励计划中对激励对象做出的上市承诺,亦应认为原则上有效。鉴于此,若拟上市公司在股权激励计划中作出上市承诺,在相关条件触发时,被承诺的激励对象有权根据该承诺要求相关主体履行股权回购或现金补偿义务。
2、 Related rules and case studies 1 Listing commitments are generally effective in non-public company equity incentives. Current regulations do not explicitly prohibit listing commitments. In other words, if the content of the commitment does not fall under the category of invalid civil acts as stipulated in the Civil Code, the commitment should be considered valid. In addition, according to the "Minutes of the National Court Civil and Commercial Trial Work Conference" released by the Supreme People's Court in 2019, the betting agreement between the investor and the target company and its shareholders or actual controllers is generally recognized as valid. Similarly, we understand that the listing commitment made by the company and related entities to the incentive objects in the equity incentive plan should also be considered valid in principle. In view of this, if the proposed listed company makes a listing commitment in the equity incentive plan, when relevant conditions are triggered, the promised incentive object has the right to require the relevant parties to fulfill the obligation of equity repurchase or cash compensation according to the commitment.
2. 可能需在上市申报前解除根据《首次公开发行股票注册管理办法》,发行人应当满足股份权属清晰,不存在导致控制权可能变更的重大权属纠纷的要求。若拟上市公司在IPO申报前实施的股权激励中存在对激励对象作出上市承诺的,可能导致在IPO申报期间内因激励对象行使回购权而引发的拟上市公司股份变动,进而不符合境内首发上市的相关审核要求。因此,为满足监管要求,拟上市公司在进行IPO申报前,可能需要对股权激励计划中的相关承诺条款进行调整。
2. It may be necessary to lift the requirement of clear ownership of shares and no major ownership disputes that may lead to changes in control, in accordance with the "Measures for the Administration of Registration of Initial Public Offerings of Stocks", before the listing application. If the equity incentive implemented by the proposed listed company before the IPO application includes a listing commitment to the incentive object, it may lead to changes in the shares of the proposed listed company during the IPO application period due to the exercise of repurchase rights by the incentive object, thereby not meeting the relevant review requirements for domestic initial public offerings. Therefore, in order to meet regulatory requirements, the proposed listed company may need to adjust the relevant commitment clauses in the equity incentive plan before filing for IPO.
此外,对于上市承诺是否可能被认定为存在上市障碍的,可以参考《监管规则适用指引——发行类第4号》对于“对赌协议”的核查要求:投资机构在投资发行人时约定对赌协议等类似安排的,保荐机构及发行人律师、申报会计师应当重点就以下事项核查并发表明确核查意见:一是发行人是否为对赌协议当事人;二是对赌协议是否存在可能导致公司控制权变化的约定;三是对赌协议是否与市值挂钩;四是对赌协议是否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。存在上述情形的,保荐机构、发行人律师、申报会计师应当审慎论证是否符合股权清晰稳定、会计处理规范等方面的要求,不符合相关要求的对赌协议原则上应在申报前清理。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。
In addition, for whether the listing commitment may be identified as having listing obstacles, reference can be made to the verification requirements for "betting agreements" in the "Guidelines for the Application of Regulatory Rules - Issuance Category No. 4": If investment institutions agree on similar arrangements such as betting agreements when investing in issuers, the sponsor institution, issuer lawyers, and reporting accountants should focus on verifying and issuing clear verification opinions on the following matters: first, whether the issuer is a party to the betting agreement; Secondly, whether there are provisions in the betting agreement that may lead to changes in the company's control rights; Thirdly, whether the betting agreement is linked to the market value; The fourth is whether the gambling agreement has a serious impact on the issuer's ability to continue operating or other situations that seriously affect the rights and interests of investors. If the above situations exist, the sponsoring institution, issuer's lawyer, and declaration accountant should carefully evaluate whether they meet the requirements of clear and stable equity, accounting treatment standards, etc. Any betting agreement that does not meet the relevant requirements should be cleared before declaration. The issuer shall disclose the specific content of the betting agreement, the potential impact on the issuer, and provide risk warnings in the prospectus.
解除对赌协议应关注以下方面:(1)约定“自始无效”,对回售责任“自始无效”相关协议签订日在财务报告出具日之前的,可视为发行人在报告期内对该笔对赌不存在股份回购义务,发行人收到的相关投资款在报告期内可确认为权益工具;对回售责任“自始无效”相关协议签订日在财务报告出具日之后的,需补充提供协议签订后最新一期经审计的财务报告。(2)未约定“自始无效”的,发行人收到的相关投资款在对赌安排终止前应作为金融工具核算。
When terminating a bet agreement, attention should be paid to the following aspects: (1) the agreement is deemed "invalid from the beginning", and if the relevant agreement for the repurchase responsibility is signed before the date of the financial report, it can be regarded that the issuer does not have a share repurchase obligation for the bet during the reporting period, and the relevant investment funds received by the issuer can be recognized as equity instruments during the reporting period; If the agreement related to the "null and void from the beginning" of the resale liability is signed after the date of issuance of the financial report, the latest audited financial report after the agreement is signed shall be supplemented. (2) If there is no agreement on 'invalid from the beginning', the relevant investment funds received by the issuer shall be accounted for as financial instruments before the termination of the betting arrangement. ? ?
3.案例公司实施的股权激励价格通常显著低于外部投资人入股价格,激励员工与通过高溢价及高估值进入公司的外部投资人相比,并不具有签署包含上市承诺等对赌条款的商业合理性,实务中也并不常见,经检索案例,近年来在股权激励中作出上市承诺的申报公司较为少见,且在上市申报前即已失效,以宝丰能源(600989,2019.05.16上交所主板上市)为例,2017年 5、6 月份,宝丰集团分别与员工持股平台智信合达、智德汇、智合汇及瑞德恒通签订了《股份转让协议》,《股份转让协议》约定:“若宝丰能源未能在新股东首笔股权转让价款支付日起 36 个月内或双方另行书面约定的其他时间内完成首次公开发行股票并上市,则宝丰集团将按照股份转让价款加 8%年费率回购新股东受让的全部股份。回购条款自宝丰能源经其保荐人保荐并向中国证监会递交首次公开发行并上市申请文件之日起失效。若宝丰能源上市失败或撤回上市申请材料,则回购条款自动恢复效力。”
3. The equity incentive prices implemented by the case company are usually significantly lower than the investment prices of external investors. Compared with external investors who enter the company through high premiums and high valuations, incentivizing employees does not have the commercial rationality to sign betting clauses including listing commitments. It is also not common in practice. After searching cases, it has been found that in recent years, there have been relatively few companies that have made listing commitments in equity incentives, and they have already expired before the listing application. Taking Baofeng Energy (6009892019.05.16 listed on the main board of the Shanghai Stock Exchange) as an example, in May and June 2017, Baofeng Group signed "Share Transfer Agreements" with employee shareholding platforms Zhixinheda, Zhidehui, Zhihehui, and Ruide Hengtong respectively Agreement: "If Baofeng Energy fails to complete its initial public offering and listing within 36 months from the date of payment of the first equity transfer price by the new shareholder, or within any other time period agreed upon in writing by both parties, Baofeng Group shall repurchase all the shares transferred to the new shareholder at an annual rate of 8% based on the share transfer price. The repurchase clause shall become invalid from the date when Baofeng Energy is sponsored by its sponsor and submits the initial public offering and listing application documents to the China Securities Regulatory Commission. If Baofeng Energy fails to go public or withdraws its listing application materials, the repurchase clause shall automatically resume its effectiveness
需特别提示注意的是,根据2023年5月的IPO窗口指导意见,带恢复条款的对赌相关规定(如和实控人的回购、若未成功上市需恢复回购约定等)可能被视为清理不彻底,需要在IPO申报前彻底解除,否则可能构成上市实质障碍。
It should be noted that according to the guidance for the IPO window in May 2023, provisions related to gambling with recovery clauses (such as repurchase agreements with actual controllers, restoration of repurchase agreements if unsuccessful listing, etc.) may be considered incomplete and need to be completely lifted before IPO application, otherwise they may constitute substantial obstacles to listing.
三、建议尽管在股权激励中设计上市承诺在操作上是可行的,但这种做法在一定程度上显示出公司在保留关键人才方面的底气不足。股权激励的核心在于员工对公司未来成长和前景的信任与期待,而上市仅仅是众多发展途径中的一种。若公司只能依赖上市承诺来维持人才队伍稳定,某种程度上也表明公司在业务实力、行业竞争力、企业文化等方面的“不自信”。此外,若公司仅能在人才谈判中通过承诺上市来取得优势,这也在一定程度上反映出公司在这些人才的议价能力上存在劣势,这种情况还可能引起投资者对公司管理层稳定性的担忧,从而造成长期的负面影响。
3、 Although designing listing commitments in equity incentives is feasible in practice, this approach to some extent demonstrates the company's lack of confidence in retaining key talents. The core of equity incentives lies in employees' trust and expectations for the company's future growth and prospects, and going public is just one of many development paths. If a company can only rely on listing commitments to maintain a stable talent pool, it also indicates a lack of confidence in its business strength, industry competitiveness, corporate culture, and other aspects. In addition, if a company can only gain advantages through promising to go public in talent negotiations, this also reflects to some extent the company's disadvantage in the bargaining power of these talents. This situation may also cause investors to worry about the stability of the company's management, thereby creating long-term negative impacts.
作为专业的资本市场律师,我们建议公司避免在股权激励方案中包含上市承诺,这样的做法可能会给公司及其控股股东的股权结构带来不必要的稳定性风险,对公司未来登陆资本市场增加障碍。相反,公司应当专注于增强自身在人才市场竞争的能力,提升企业的核心竞争力,从而在无需依赖上市承诺的情况下,有效地吸引和保留人才。
As professional capital market lawyers, we recommend that companies avoid including listing commitments in their equity incentive plans, as this approach may bring unnecessary stability risks to the equity structure of the company and its controlling shareholders, and increase obstacles to the company's future entry into the capital market. On the contrary, companies should focus on enhancing their ability to compete in the talent market, improving their core competitiveness, and effectively attracting and retaining talent without relying on listing commitments.
总结拟上市公司在制定激励计划时,可以考虑在符合法律法规的前提下向激励对象作出上市承诺,但需谨慎评估其必要性,并在激励方案中详细阐述上市承诺的具体条款和条件,以及未能上市时的处理机制,以便能够有效地激励员工,同时减低可能产生的负面影响。
When formulating incentive plans, companies planning to go public may consider making listing commitments to incentive targets in compliance with laws and regulations. However, the necessity of such commitments should be carefully evaluated, and the specific terms and conditions of the listing commitments, as well as the handling mechanism in case of failure to go public, should be elaborated in the incentive plan to effectively motivate employees and reduce potential negative impacts.
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