由于涉及股权回购/现金补偿责任与违约责任，违约金条款在对赌协议中表现得比较复杂。本文将在前述两种分类方法的基础上，结合司法案例具体分析违约金条款在对赌协议中的适用情况。
违约金是民商法中一种常见的违约责任形式。《民法典》第585条第1款就违约金作出了如下规定：
当事人可以约定一方违约时应当根据违约情况相对方支付一定数额的违约金，也可以约定因违约产生的损失赔偿额的计算方法。
显然，《民法典》将约定违约金的性质定位为，合同当事人预先约定的、由一方违约导致另一方损失的损害赔偿额。换言之，约定违约金的基本功能是补偿守约方损失而非惩罚违约方，更不是让守约方通过约定违约金获利。通过后文的案例，我们将看到约定违约金的这一性质定位是如何影响法院判决的。
对赌协议中的违约金条款通常有如下两种表现形式：融资方违反股权回购/现金补偿义务的违约金，融资方违反其他义务的违约金。
以投资方要求股权回购为例，前者表现为，根据对赌协议的约定，股权回购条件成就且投资方向融资方主张回购时，如果不履行或者逾期履行股权回购义务，则融资方需要按照应付但未付款项的一定比例支付逾期违约金。
1. Related Fund Entity filings for private funds]
On 1 September 2021, the Cayman Islands Monetary Authority (CIMA) issued a Notice advising industry that a new Related Fund Entity (RFE) form for private funds was available for use via CIMA's Regulatory Enhanced Electronic Forms Submission (REEFS) portal.
While the world wrestles with the day-to-day realities of the pandemic, 2021 will bring further challenges. With the memory of the litigious and regulatory aftermath of the global financial crisis still fresh, what should be on your radar?
1. Disputed margin calls and close-outs
Recent regulatory developments of interest to all financial institutions. Includes key COVID-19 updates from the UK FCA, AML/CTF updates and more.
COVID-19: FCA statement on handling of post and paper documents
On 13 May 2020, the Financial Conduct Authority (FCA) published a statement on how firms should handle post and paper documents during the COVID-19 pandemic.
Real Estate Quarterly
Summer 2020
Contents
This newsletter is written in general terms and its application in specific circumstances will depend on the particular facts.
If you would like to receive this newsletter by email please pass on your email address to one of the editors listed below.
In this week’s update: The Corporate Insolvency and Governance Act 2020 comes into force, the Government extends company and LLP filing deadlines, new guidance on public health emergency takeover interventions, FCA censure of accompany for historic market abuse and a few other items.
Samantha Gilbert speaks to compliance leaders from the healthcare, financial services, insurance, IT and commercial sectors on what to expect from the new “business as usual” and enforcement. Conduct reviews, increased regulatory scrutiny and long-term digitisation are some key issues for compliance teams to prepare for.
Lexology Pro Compliancetakes a look at some of the most informative articles published on Lexology this fortnight for compliance teams to stay up-to-date, including key guidance from regulators around the world and practical tips to help businesses adapt to a new normal.
Included in this update: Corporate Insolvency and Governance Bill introduced to Parliament; FRC updates guidance on corporate governance and reporting and more...
Corporate Insolvency and Governance Bill introduced to Parliament
On 20 May 2020, the U.K. government published the Corporate Insolvency and Governance Bill (the bill), which includes measures designed to help businesses through the COVID-19 pandemic and features important substantive reforms to U.K. restructuring law, whose introduction has been accelerated by the crisis.
COVID-19-Related Measures:
The key temporary measures introduced by the bill are:
Statutory Demands and Winding up Petitions