Bolagsordningen och aktieägaravtalet som effektiva styrningsverktyg i ägarledda bolag - Särskilt om överlåtelseregleringar

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: In closely held companies, shareholders are often also involved as Board members and in these companies it is important to govern the decision-making process and the sale of shares. The Articles of Association and the Shareholders’ agreement are governing instruments and can be used for this purpose. The overall purpose of this thesis is to examine the relationship between the Article of Association and the Shareholders agreement as governing instruments in closely held companies. The research questions are centered to the legal effects of each instrument, how the instruments can be used in closely held companies and how situations with conflicting content between the instruments is handled. The Article of Association can comprise of regulations regarding different classes of shares or different voting majorities for decisions. Furthermore, the free transferability of shares can be adjusted. The Shareholders’ agreement is less regulated than the Article of Association and has fewer restrictions. However, the legal effects of the Article of Association are strong and shareholders expect the different corporate bodies to follow its regulations. The legal effects of the Shareholders’ agreement are less definite. My findings conclude the existence of separation principles in Company and Contract law that limits the legal effects of the Shareholders’ agreement. The Shareholders’ agreement does not affect the company bodies but obligates the contracting parties according to Contract law. The characteristics of the governing instruments can be used in closely held companies in different ways. Since the characteristics of the instruments are different the shareholders is advised to use both to regulate their interests. They will benefit from the strong legal effects of the Article of Association in combination with the fewer restrictions of the Shareholders’ agreement. During this section I also discuss the possibility for the Shareholders’ agreement to obligate a non-contracting party and how new shareholders can be incorporated in the agreement. Combined regulations in both governing instruments enhance the risk of conflicting content between the instruments. This is not a problem if the Shareholders’ agreement has a priority regulation. However, without a priority regulation there is an uncertainty about the ability to use a regulation in the Shareholders’ agreement instead of a similar regulation in the Articles of Association. I find that there probably is possible to waive a pre-emption clause in advance, but regarding other regulations the uncertainty is significant.

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