Förvärvsbolag: Investerarskydd, informationsplikt och intressekonflikt - En undersökning av samspelet mellan Nasdaqs nordiska förvärvsbolagsregler och de unionsrättsliga informationskraven på värdepappersmarknaden

Sammanfattning: A shell company without an actual operation (acquisition company) can be listed on Nadaqs nordic market and acquire an unlisted company (target company) by merger. A merger is dependent on the shareholders approval at a special shareholders meeting. The idea behind this, among other things, is that this creates a fast track into the stock market for the latter. This paper investigates the extent of the investor protection in relation to the trading of shares in acquisition companies, if retail investors accessibility to these securities should be limited because of the complexity of acqquisition companies and how the position of shareholders at the special shareholders meeting can be strengthened. In order to analyze the different regulatory systems which are applicable simultaneously, a legal analytical method is chosen in order to allow more open arguments revolving the sources of law. The investor protection rules on the securities market is predicated on investors being given access to fair information. The companies need to be transparent and disclose information to investors on a basis as to allow them to make sound investment decisions (for instance through the publication of a prospectus in accordance with the EU prospectus regulation). Apart from the access to information,however, investors are not given any further protection. The information disclosure requirements combined with the exchanges rule that the business, postmerger, needs to undergo a new listing process, renders the cost effectiveness of the acquisition companys listing illusory, or at least not representative of the subsequent costs. The acquisition company issues warrants to its sponsors (financiers of the acquisition companys intial public offering) and thereby finances its working capital. These warrants issued to the sponsors brings with them agency costs as a result of conflicts of interest that arise between the company management and the shareholders. EU law stipulates that investment firms inform their customers if the securities the customer wants to trade in are deemed inappropriate. The assesment of appropriateness is done by requesting information from the customer. These incentive programs, however, aren’t unusual and therefore acquisition compani shares shouldn’t be deemed as inappropriate because the underlying company structure includes incentive programs based on warrants. Instead, the customers personal dealings with derivatives (such as warrants) should be decisive in the outcome of the assesment of appropriateness. Esma encourages national competens authorities to approve prospectuses if they contain detailed information regarding the future acquisition, among other things the provisions for the deal and anticipated synergies. The idea is that this will make up for the exemption document, which can be used if the acquisition is executed through a merger. This exemption document will be presented to the shareholders at the special shareholder meeting and does not, in contrast to a prospectus, need to be approved beforehand by a national competent authority. This is problematic because the company’s board of directors is hardly able to foresee the intended synergies before they’ve identified a target company, and even if they can anticipate which details to include then the public disclosure of this information might hurt the companys negotiation leverage and thereby hurt the shareholders interests. Instead, consideration should be taken to the possibility of making exemption documents subject to approval by national competent authorities before they are disclosed to shareholders.