Garanterat garanterade? - En studie av emissionsgarantiers eventuellt bindande verkan mot bakgrund av formkravet vid aktieteckning

Abstract

Conducting a new share issue is a common way to attract new funds to a joint-stock company in need of it. By guaranteeing the new share issue the company wants to make sure that the shares are subscribed for to the largest possible extent. Guarantees play an important role as they assure the involved parties that the issue will be successful, and the using of guarantors can be crucial for several reasons. The knowledge that the expected capital investment will reach the company gives the management an easier task of planning the fu­ture of the company. But the most important reason for using guarantors is the fact that a guarantee ensures the existing shareholders with priority to the new shares that there are other investors believing in the future of the company, and this will hopefully relieve them of doubts about their own participation in the new share issue. Guarantees as a phenomenon has existed for a long time and the law ex­plicitly talks about acting as a guarantor on a professional basis. They also have legitimacy from customs on the market. Despite this, the agreement between the issuer of the shares and the guarantor brings up several legal issues. Consid­ering that subscription for new shares is an agreement which for its validity requires certain form, it is a valid question to ask whether the agreement can be considered legally binding for the guarantor. When studying the literature on the subject, one finds contradicting opinions, and the only precedent that deals with promises of future subscription of shares - NJA 1918 page 394 - states that a promise of such kind can not be considered legally binding for the party who have given the promise. However, the precedent is ninety years old and a lot has happened since. Furthermore, the problem has not been discussed to any larger extent during the work proceeding later years' Swedish companies acts (Swe. Aktie­bolagslagen, ABL), thus making the question whether or not these agreements are to be considered legally binding appear alarmingly unclear. The rules regulating subscription for shares in connection with a new share issue are found in chapter 13, paragraphs 13-14 of the Swedish companies act. Para­graph 13 states that the subscription for the shares is to be conducted on a certain list containing certain information necessary in order to allow the subscribers of the new shares to get a good image of the company. If this procedure is neglected, paragraph 14 states that the subscription for shares is not legally valid, unless it has been registered at the Swedish Companies Registration Office (Swe. Bolagsverket) before a complaint has been filed. In accordance with the views that are represented in most of the literature on the subject, I am of the opinion that the discussion whether or not these agreements are to be considered legally binding, is a discussion of whether or not it is possible to make an analogy from the form prescribed by law when subscribing for new shares. In the early literature, Swedish legal scholar Hjalmar Karlgren argued that promises of future subscription of shares was to be considered not binding. Karlgren was of the opinion that an analogy should be made from the form prescribed by law when subscribing for new shares, thus making such promises not binding. He based his view on an assumption of what had been the original legislators' motives for stating the form prescribed by law. Karlgren argued that he had found one motive, standing above all others, and this motive would be missed if promises of future subscription for shares were to be considered legally binding. The motive that Karlgren argued was of utmost importance was the investing public's need for protection from unsound companies. The views of Hjalmar Karlgren have lately been criticized, mainly by another legal scholar, Erik Nerep. Nerep has argued that there are no grounds on which an analogy can be allowed and therefore there are no rea­sons why promises of future subscription of shares should not be considered legally binding. On my part, I am of the opinion that there are certain legis­lative motives to the form prescribed by law, and these makes it impossible to exclude the possibility that the Supreme Court would come to the conclu­sion that guarantee commitments are to be considered legally not binding, if the matter would be laid before it. My conclusion on this matter is therefore that the question whether or not promises of future subscription for shares is to be considered legally binding is not solved to a satisfying degree, and I would therefore like to raise a warning concerning the insecurity that occurs when a guarantee commitment is agreed upon with a guarantor. The company issuing the shares ought to be aware that it is not certain that it is possible to claim for indemnity if a guarantor decides not to honour his side of the agreement. However, it is of utmost importance that the using of guarantors work smoothly and properly and the insecurity that, I mean, is connected to this should therefore as soon as possible be eliminated. Solving the problem through a precedent is neither likely nor to wish for. Instead, the legislator should cast all doubts aside by stating, in connection to chapter 13, para­graph 13 of the Swedish companies act, that agreements that aim to ensure that a new share issue is successful are allowed and legally binding.

• author: Prawitz, Daniel
• supervisor: Torsten Sandström
• organization: Department of Law
• year: 2009
• type: H3 - Professional qualifications (4 Years - )
• subject: Law and Political Science
• keywords: Förmögenhetsrätt, Associationsrätt, Avtalsrätt
• language: Swedish
• id: 1561351
• date added to LUP: 2010-03-08 15:55:28
• date last changed: 2010-03-08 15:55:28