Aktieägaravtal. Särskilt om besluts- och överlåtelsebindningar

Detta är en avhandling från Thomson Reuters Professional AB

Sammanfattning: The thesis aims at clarifying the function and civil law effects of shareholder agreements according to Swedish law. Shareholder agreements perform important functions as instruments to reduce risks associated with company law. It is clear that many companies do not correspond to the image of the company and its shareholders - i.e. the image of a capitalist firm and investor owners - on which company law is based. In some cases, there is a desire to ensure that strong external preferences can be realised, with the result that measures must be taken to guard against the principle of profit maximisation being accorded overriding importance. In other cases, it is precisely the effect of existing external preferences which must be countered. As a means of achieving the desired goals, shareholder agreements typically regulate decision-making activities and procedures within the company and its bodies. Contractual provisions of this kind can be called decision obligations ("beslutsbindningar"). Often the agreements also regulate transfer of shares. These provisions can be called transfer obligations ("överlåtelsebindningar"). Important to note is that the objects of the agreements - i.e. decision-making within the company and share transfers - are already regulated by the Swedish Companies Act ("Aktiebolagslagen [2005:551]"). They can also to a certain extent be addressed by the articles of association. This means that shareholder agreements give rise to collisions between two areas of law - contract law and company law - which are often regarded as mutually autonomous. This autonomy can be described in terms of two separation principles: one pertaining to contract law and the other to company law. Schematically, the problems that shareholder agreements raise can be analysed in the light of these principles. According to the separation principle in company law, statutory law support is necessary in order for an agreement to have company law effects. Conversely, according to the separation principle in contract law contractual assessments are not influenced by company law considerations unless prescribed by statutory law. The study shows that the separation principle in company law is absolute. However, the same can not be said regarding the separation principle in contract law. For example, the thesis argues that the performance of roles and functions other than the role of being a shareholder is or - concerning questions which fall under gaps - ought to be contractually mandatory. In contrast, there is no reason to view any part of the shareholder protection afforded by company law as contractually mandatory.

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