Målbolagsstyrelsens kompetens i samband med ett takeover-erbjudande

Sammanfattning: A takeover bid is a public offer to the shareholders of a listed limited liability company (target company) to acquire all or some of their shares. The board of directors of the target company assumes an important role in the negotiations with the buyer (bidder). Hereby, the board can plausibly influence the launching and implementation of a takeover bid. This thesis examines how the board’s discretion in relation to a takeover bid is limited by norms regarding a board’s competence in Swedish securities law and company law. The method used in this thesis is the legal dogmatic method. There are no rules under the Swedish Companies Act (2005:551), ABL, that specifically govern the board’s actions in a takeover situation. However, several rules and principles in ABL regulate the competence of the board to take actions on behalf of the company. An essential provision is 3 ch. 3 §, which stipulates that the aim of a corporation is to generate profit for distribution among shareholders. Furthermore, the board has a duty to comply with instructions from the general meeting of shareholders. Nevertheless, the board must also respect provisions protecting minority shareholders, such as the general clause in 8 ch. 41 § and the principle of equality in 4 ch. 1 §, as well as provisions protecting creditors, e.g. the principle of coverage in 17 ch. 3 §. Moreover, the board has a duty of loyalty and a duty of care towards the corporation. The board neutrality rule in 5 ch. 1 § of the Swedish Takeover Act (2006:451), LUA, constitutes the basis for the board’s role in a takeover situation. This provision prevents the board from taking any action that could frustrate the bid (without shareholder approval). Furthermore, the self- regulatory takeover rules state that the board should act in the best interest of the shareholders in matters relating to a takeover bid. Whether this duty entails that the board neutrality rule shall be interpreted in a way that requires the board to facilitate a takeover bid, appears to be uncertain. A number of questions arise when analysing what impact the board’s competence according to ABL have on its discretion in relation to a takeover bid. One question is how to assess costly takeover related measures with regard to the principle of profit maximation, the scope of business and the principle of coverage. Another question, which is related to the former, is whether the board has a duty to comply with instructions from the general meeting to facilitate or frustrate a takeover bid. Furthermore, there is a question of how the best interest of the company as well as the duty of loyalty and the duty of care should be interpreted in a takeover context. Based on the analysis of these issues it appears that the rules and principles of ABL regarding the board’s competence have a limited impact on the board’s discretion in relation to a takeover bid. Except for cases when there are lawful instructions from the general meeting, it seems to be in rare circumstances that the rules impose a duty for the board to act in a certain way with regard to a takeover bid. In these rare situations it appears to be mainly a duty to refrain from taking actions.