2017 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity Funds and

Other Private Funds

2017 Proskauer Annual Review and Outlook for Hedge Funds, Private Equity

Funds and Other Private Funds

The following annual review and outlook (Annual Review) is a summary of some of the significant changes and developments that occurred in the past year and certain recommended practices that investment advisers to hedge funds, private equity funds and other private funds (collectively, private funds) should consider when preparing for 2018.

新疆某上市公司（下称“公司”）因信息披露违规被中国证监会行政处罚，引发众多股民对公司提起证券虚假陈述民事赔偿诉讼（下称“本案”），金杜代理公司应诉。近期，新疆某中级法院就本案作出一审判决，驳回股民全部诉讼请求。

本案系典型的证券虚假陈述民事赔偿诉讼。该类案件因涉及股民众多、索赔金额高、专业性强，往往引发资本市场高度关注。从以往的案例来看，上市公司被行政处罚后引发的股民诉讼，法院判决驳回原告全部诉讼请求的案例极为罕见。本案中，金杜基于以往处理类似案件的丰富经验和专业把握，针对本案的案情特点，有针对性地提出了上市公司不应承担股民损失的答辩意见，最终得到法院支持。这是金杜代理上市公司成功应对股民提起证券虚假陈述民事赔偿诉讼的又一经典案例。

案情简介

2014年7月，中国证监会作出《行政处罚决定书》，认定公司连续多年虚构购销业务，虚增业务收入与成本，虚增或者虚减利润，导致公司2006年至2011年年报存在信息披露违规问题。

截止目前，本案共有70余名股民对公司提起证券虚假陈述民事赔偿诉讼，此外，还有批量股民以律师函的方式向公司进行索赔。

本案主要争议焦点及金杜整体应对思路

The economically significant investment activity by insurance companies is subject to the regulatory requirements of the German Insurance Supervision Act (Versiche­ rungsaufsichtsgesetz – VAG). With regard to the provisions of the European Solvency II Directive, changes to the requirements for capital investments of insurance companies have resulted from the new VAG which came into effect as of 01 January 2016 (VAG new). This gives us cause to take a look at the most important changes.

A.  Former legal situation

milbank.com 1 Client Alert: Close-out Netting Provisions partially held invalid by German Federal Court of Justice General Administrative Act (Allgemeinverfügung) issued by German Federal Supervisory Authority to avoid Legal Uncertainty and Distortions in Financial Markets EXECUTIVE SUMMARY The German Federal Court of Justice (Bundesgerichtshof, "BGH") ruled on 9 June 2016 that contractual close-out netting provisions which deviate from section 104 of the German Insolvency Code (Insolvenzordnung) are invalid and section 104 of the German Insolvency Code applies in lieu of the invalid contra

(German federal high court – decision of September 24th, 2015 – IX ZR 272/13)

Legal background

In accordance with sec. 166 para 1 German Insolvency Code (“InsO”) an insolvency administrator is entitled to utilise tangible assets in his possession, even where the assets are encumbered.

Although the German Insolvency Code regulates the disposal and utilization of tangible assets and claims encumbered in favour of a creditor no regulation exists for rights such as shares, trademarks or intellectual property rights.

The Federal Court of Justice (Bundesgerichtshof, BGH) pronounced on double securities in its eagerly anticipated judgment of 1 December 2011 (IX ZR 11/11). The practice was controversial even before the Act for the Modernisation of Limited Liability Company Law and for the Prevention of Abuse (Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen, MoMiG) came into force. “Double security” arises where security is provided over a creditor‘s claim both by the company itself and by its shareholders.

In four judgments of 26 June 2012, case refs.: XI ZR 259 / 11, XI ZR 316 / 11, XI ZR 355 / 10 and XI ZR 356 / 10, the Federal Court of Justice (BGH) has again stated its position on the question of when there is a duty to disclose commission. In all four cases the investors purchased certificates from the same defendant bank to invest different amounts and these certificates turned out to be largely worthless following the insolvency of the issuer (Lehman Brothers Treasury Co. B.V.) and the guarantor (Lehman Brothers Holdings Inc.) in September 2008.

Tax treatment in the hands of the creditor

If a creditor waives an intra-group receivable, this leads to an accounting loss in the amount of the receivable. Such loss, however, is not automatically tax-deductible in the hands of the creditor.

DURING THE PAST YEAR, many investors in the distressed debt market have received postreorganization private equity1 either through a confirmed plan of reorganization or through participation in a rights offering. Unlike publicly traded equity, each new issuance of postreorganization equity leaves recipients, issuers, and agents potentially facing uncharted territory in terms of how the instrument is to trade and settle.

Under the 2000 version of the Global Master Repurchase Agreement (the "GMRA"), a standard form agreement produced by The Bond Market Association and the International Securities Market Association, an Event of Default occurs, and all outstanding transactions under the GMRA are accelerated immediately, upon: