sou · GLB3168 · 1998-01-01 00:00:00 — Kommittén föreslår därför att det nuvarande låneförbudet ersätts av en bestämmelse av innebörd att aktiebolag får lämna penninglån till den aktuella personkretsen under förutsättning att de utlånade medlen skulle ha kunnat betalas ut i form av vinstutdelning och att betryggande säkerhet ställs för lånet. Med kommitténs förslag att inordna lånereglerna bland övriga kapitalskyddsregler utan särskilda skattemässiga hänsyn ställer det sig naturligt att överge straffsanktionen och i stället sanktionera lånereglerna på väsentligen samma sätt som övriga kapitalskyddsregler. Kommittén föreslår därför att ett olagligen lämnat lån skall återbetalas om bolaget visar att låntagaren insåg eller bort inse att det var olagligt. Straffsanktionen föreslås upphävd. Kommittén föreslår att de nya bestämmelserna träder i kraft . The main distinguishing feature of the corporation (aktiebolag in Swedish) is that its shareholders are not personally liable for the companys obligations. Only the companys capital can be claimed as payment for liabilities. Act therefore contains a number of rules guaranteeing that a corporations capital is created when the corporation is formed and that it does not subsequently reduce its assets or increase its liabilities without compensation (the so-called capital protection rules). In its report entitled Corporate Capital (Aktiebolagets kapital, SOU 1997:22), has proposed new provisions on forming companies and increases and reductions of share capital. In this report, the Committee proposes new provisions on profit distributions and other value transfers from a company to its shareholders or others. As with the rules on the payment of, and increase and reduction of, share capital, the rules now in question have as their purpose to make it easier for companies to obtain capital. Rules on the forms permitted for value transfers from the company guarantee shareholders insight into, and a say how, capital is utilized, which will benefit the opportunities available to the company to obtain capital from shareholders. Limitations on the scope of such value transfers create a form of protection for the companys creditors and thus the possibility for the company to obtain debt financing at lower costs than it otherwise could. Another important function of these limitations is to protect indirect creditors with claims for damages and other unagreed claims. The rules on the permitted forms of value transfers from the company are designed to safeguard the interests of shareholders and therefore, as with other rules that protect shareholders, may be disregarded if all the shareholders so decide. This does not apply to the rules that limit the scope of value transfers shareholders may decide on. These so-called creditor protection rules are mandatory. They may not be disregarded even if all the shareholders are in unanimous agreement. A third group of rules which cannot be described as either shareholder protection or creditor protection rules pertain to the delegation of authority between corporate entities. These rules are also mandatory. Acceptable forms of value transfers to shareholders or others Value transfers from the company may involve assets corresponding to the companys restricted or its nonrestricted shareholders equity. Assets corresponding to the companys restricted equity may, in accordance with the mandatory provisions of the Companies Act, be claimed only as repayment to shareholders in the case of a reduction of the share capital, statutory reserve or premium reserve, as well as a distribution in connection with the companys liquidation. Assets corresponding to the companys nonrestricted equity may be claimed through value transfers to shareholders or third parties. The prescribed form for such value transfers to shareholders is a profit distribution. The requirements are designed to protect the interests of shareholders and may be disregarded if all the shareholders are in agreement. In a company whose business it is to generate a profit for its shareholders, value transfers to others than shareholders may only be decided by a unanimous vote of the shareholders. It follows from this basic rule that corporate entities may not decide on or undertake transactions that are clearly unrelated to the companys mission. If the shareholders agree, the company may transfer value to third parties, provided the transaction does not violate the rules that safeguard the interests of creditors. One limited exception to the requirement of a unanimous shareholder vote is when the general meeting, and to a certain extent the board of directors, has the right under certain circumstances to present a gift that benefits the public or with a similar purpose. By law, decisions on profit distributions may be made by the general meeting, which in connection with the adoption of the income statement and balance sheet is obligated to decide on the disposition of the companys profits. Neither current laws nor legal doctrine today provide a uniform answer as to whether profit distributions may be decided by extraordinary general meetings. proposes that in the new regulations, corporations be given the express opportunity to decide at an extraordinary general meeting held after the annual meeting but before the conclusion of the fiscal year on distributions of nonrestricted equity according to the adopted balance sheet after deducting any amounts that may have already been distributed, a so-called additional distribution. is not proposing any provisions on advance distributions. The current restriction, which safeguards the interests of creditors and prohibits the distribution of profits for a fiscal year in which the annual report has not been adopted, should remain in force. Decisions on profit distributions require a majority vote of the general meeting. proposes that the board of directors veto right in connection with decisions on profit distributions be abolished. Minority interests are protected in this case by the fundamental principle of equality, which states that every share, in relation to other shares, is entitled to an equal portion of dividend payments, unless there is a provision in the companys articles of association on shares of different with different rights to share in the companys profits. In the case of distributions of property other than money (real value), the principle of equality means that each share is entitled to property of equivalent value, unless the company has different of shares. The general meeting may not decide on a distribution that unfairly benefits one or more shareholders at the expense of the company or other shareholders. The rules on creditor protection in the Companies Act rest on the principle that the company must always maintain assets corresponding by a certain to its liabilities. The is made up of the companys share capital and other restricted equity. The book value of the companys assets may not be less than its reported liabilities and provisions, plus restricted equity. If so, its restricted equity is considered covered. The company may not distribute profits to shareholders unless it immediately thereafter has full coverage for its restricted equity. However, in its current wording with respect to profit distributions, the law is elaborated based on the other, nonrestricted portion of shareholders equity. Instead of prohibiting distributions of restricted equity, it states that distributions may not exceed the companys nonrestricted equity. The wording that was chosen does not cause any problems as far as cash distributions are concerned. On the other hand, it has caused considerable interpretation problems with respect to distributions of real value. As is already the case with reductions in share capital the provision in the new regulation should be designed such that companies may not transfer property to shareholders or other third parties at amounts larger than can be fully covered by their restricted equity following such a transfer. The inclusion of others besides shareholders is motivated by the fact that it is irrelevant in principle from the standpoint of a companys creditors to whom the transfer is made. Creditors should feel assured that the company will not decide on any form of value transfer that does not comply with the Acts provisions on reductions in share capital, the statutory reserve or premium reserve, as a result of which it no longer has full coverage for its restricted equity. According to current law, profit distributions are also limited by the requirement of allocations to the statutory reserve. Ten percent of the net profit for the year – after deducting any losses brought forward – shall be allocated to the statutory reserve, until this reserve, together with any premium reserve, amounts to 20 percent of the share capital. meeans that the rules on repeated allocations to the statutory reserve are antiquated and illogical. Consequently, no similar provision has been included in the proposal. To prevent the parent company of a corporate group from distributing profits disproportionate to the profits of the group as a whole, parent companies have been subject to a twofold limitation on profit distributions. A parent company has not been permitted to distribute more than the reported disposable profits according to its own balance sheet, and not more than the disposable profits of the group as a whole. To determine a distribution limit in the latter case, parent companies until very recently generally have been obligated to prepare a consolidated income statement and consolidated balance sheet in which intra-group gains and losses, as well as intra-group receivables and liabilities, are eliminated. The new Annual Accounts Act that went into effect in 1996 added certain exemptions for parent companies of subgroups from having to prepare consolidated accounts. At the same time, the rules on profit distributions in the Companies Act were changed to abolish the twofold distribution limit for parent companies which do not prepare their own consolidated accounts. This means that certain parent companies are expressly subject to a twofold distribution limit, while others are not. This in itself raises the question whether the twofold distribution limitation should be retained. Moreover, in a report entitled, Review of Accounting Legislation (Översyn av redovisningslagstiftningen, SOU 1996:157), proposed that parent companies of small groups should also be exempt from the obligation to prepare consolidated accounts. If this aspect of the Accounting Committees proposal is adopted, considerably more parent companies would no longer face the twofold distribution limitation. In light of expected developments and legal practice in other European countries the Committee proposes that the explicit connection between the profit distribution ceiling in a parent company and the consolidated accounts be abolished. The profit distribution ceiling should be stipulated by law in the same way for all parent companies – namely, based on the parent companys own balance sheet. Furthermore, all parent companies should still be obligated within the framework of the so-called rule to take into account the overall financial position of the group. In addition to the basic protection afforded creditors stemming from the requirement of full coverage for restricted equity, there is also currently a so-called rule that stipulates that a profit distribution may not be so high that its payment, in view of the companys or groups consolidation needs, liquidity or financial position in other respects, runs contrary to generally accepted business practices. proposes that the rule be tightened in several respects. According to the Committee, the provision first of all should be worded in such a way that it clearly applies not only to profit distributions, but to any form of value transfer, to shareholders or others. Conventional as well as unconventional value transfers to shareholders and value transfers to third parties should always be evaluated in relation to the rule. One weakness often cited with respect to the current provision is its reference to generally accepted business practices as the norm against which an intended profit distribution should be examined. Generally accepted business practices have not been elaborated and promulgated during the twenty years that the provision has been in effect. therefore proposes that the connection with generally accepted business practices be eliminated. Instead, the provision should be elaborated such that value transfers would only be permitted provided they are defensible in view of the companys – and, if the company is a parent company, the groups – consolidation needs, liquidity or financial position in other respects. One specific question is how creditor protection rules should be applied to transfers of property other than money (real value), where the estimated market value of the property exceeds its book value. It follows from the proposed new wording of the basic creditor protection rule – namely, that after such a value transfer the companys restricted equity must still be fully covered – that it is the book value of the remaining net assets in the company immediately after the value transfer that should serve as the basis for an evaluation whether the value distribution infringes on the companys restricted equity. A conventional distribution of property other than money thus requires that the book value of the remaining net assets cover restricted equity. The disposal of company property corresponding or in part to the restricted equity – if compensated at below the market value of the property – requires that the book value of the remaining net assets and the compensation in question together match the companys restricted equity. Merely the fact that a transfer of real value does not infringe on the restricted equity is not enough, however, for it to be permissible on company law grounds. The transfer must also be evaluated against the rule, which requires that the company, following the value transfer, is left in a defensible financial position in view of its consolidation needs, liquidity or position in other respects. Obviously, such an evaluation should be made on the basis of the market value of the companys assets and liabilities. It is also obvious that market values should be used when applying the equality principle, i.e. that the estimated market value of the transferred property must be equivalent for every share, unless otherwise prescribed in the companys articles of association or if the shareholders have agreed to another distribution. Legal ramifications of unlawful value transfers Payments to shareholders that violate profit distribution rules should, by law, be refunded to the company. To a certain extent, the provision is considered applicable in an analogous to unlawful payments to others than shareholders. means that the requirement that laws be applied with a certain degree of predictability precludes the continued reliance on an analogous application of the law in this respect. In line with the proposal that the principal creditor protection rule to protect restricted equity should expressly apply to value transfers not only to shareholders but also to third parties, the Committee also proposes that the provision on legal ramifications also applies to value transfers to shareholders and third parties. With respect to the precise legal ramifications, the Committee proposes that the provision be designed as an independent compensation obligation. Essentially, each and everyone to whom the company has transferred property without full compensation should be obligated to compensate the company by a corresponding amount, regardless of whether the transfer was the result of a conventional decision of the general meeting or was decided in another . To protect shareholders, current law prescribes that if a payment has been made in the form of a profit distribution, the recipient is obligated to refund the company only if the company can show that the recipient realized or ignored the fact that the payment violated the Companies Act. means that it is only logical that the same line of reasoning be applied on payments to shareholders in the form of repayments from a reduction of the share capital, statutory reserve or premium reserve, or in the form of a distribution in connection with the Here, as with profit distributions, it is a question of payments decided by the general meeting in accordance with procedures prescribed by law and which, at least as far as repayment of reductions in restricted equity are concerned, many times may be perceived by shareholders as a substitute for profit distributions. proposes that the provision be elaborated accordingly. A value transfer from the company to its shareholders not related to repayments in connection with reductions in restricted equity or a distribution in connection with a liquidation and which does not constitute a conventional profit distribution by law can only be implemented if all of the shareholders so decide. If the value transfer is made without unanimous shareholder support, it is considered an unlawful transfer that with it compensation liability. The same is true if the shareholders unanimously agree to the value transfer but their decision violates the creditor protection rule. Legal practice shows that good faith protection with analogous legal application may also come into question in the case of so-called veiled profit distributions. means that due to the need to safeguard the interests of third parties and the requirement of predictability, this good faith protection should be embodied in the law. Obviously in cases of value transfers of this type to shareholders who actively take part in the companys management, there should rarely be leeway for good faith. If good faith protection to shareholders is stipulated by law, there can be no question that similar protection should be afforded third parties. Here, the requirement that the interests of third parties also be protected is even more manifest. Current law imposes a liability for any shortfall that arises in the repayment of unlawful payments. This so-called shortfall coverage liability may apply to members of the board of directors, the managing director, auditors or shareholders. From an objective standpoint, liability requires participation in the decision on the unlawful payment or its implementation, or the preparation or adoption of an incorrect balance sheet that served as a basis for the decision. Subjectively, intent or negligence must be proved in the case of members of the board, the managing director and auditors or intent or gross negligence in the case of shareholders. Legal practice also shows that other individuals to a certain extent may be liable for compensation with an analogous application of the shortfall coverage rule. Thus, it would seem that such a liability could rest with those whose participation consists largely of being the recipient from another party who bears repayment liability of something stemming from an unlawful payment, provided the recipient had knowledge of the has no objection to this legal precedent. However, the requirement of predictability in the application of the law would seem to indicate that the liability of third parties in this respect should also be stipulated by law. As with shareholders, for example, third parties should be able to understand directly from the text of the law the liability they risk in the event they in one way or another participate in unlawful payments. What is subjectively required of a third party to be liable to cover a shortfall must be determined through a balance between, on the one hand, the interests of creditors and shareholders which the shortfall coverage liability is intended to protect, and on the other consideration to safeguarding of the interests of third parties. When balancing such considerations, there is good reason, in the opinion of the Committee, to be somewhat less restrictive than legal precedent would suggest. The Swedish Supreme Court limited the liability to cases of intentional participation. means that such a liability could also apply to gross negligence. However, payment recipients and others should not be expected to have to perform extensive investigations whether their participation in certain respects could involve participation in an illegal value transfer. Loans to shareholders, etc. According to current law, corporations may not grant cash loans to shareholders, board members or the managing director of the company or another company in the same group or to certain closely associated individuals. Exemptions apply in the case of loans to municipalities or county councils, other companies in the same group as the lending company, loans for business reasons to a debtors company and loans to shareholders whose shareholdings in the company are limited in size. The loan restrictions apply correspondingly to the furnishing of security. The loan restrictions were adopted by legislators in the early 1970s mainly to alleviate a tax problem prevalent at the time whereby shareholders of closely held companies often borrowed money from their companies for private consumption and thereby deferred taxation. The Committees opinion is that the Companies Act should be designed without consideration to tax consequences. Rules on loans from a company to its shareholders, officers and directors should be seen as part of the Acts capital protection rules, and the fundamental consideration in the rules should be to prohibit such loans that risk weakening protection for the creditors as a whole. therefore proposes that the current loan restrictions be replaced by a provision stating that corporations may grant cash loans to the individuals in question provided that the funds that are lent could have been be paid out in the form of a profit distribution and that satisfactory security is furnished for the loan. Given the Committees proposal to incorporate the loan rules within the other capital protection rules without special consideration to their tax consequences, it would seem natural to abolish the current penalty and instead sanction the loan rules essentially in the same way as other capital protection rules. therefore proposes that a loan granted unlawfully must be repaid if the company can prove that the borrower realized or disregarded the fact that it was unlawful. As proposed, the current penalty would be abolished. proposes that the new provisions go into effect on January 1, 2000. Lag om ändring i aktiebolagslagen (1975:1385) Härmed föreskrivs i fråga om aktiebolagslagen (1975:1385), dels att 7 kap. 8 §, 8 kap. 25 §, 10 kap. 5 §, 11 kap. 5 §, 12 kap. 6 §, 16 kap. och 23 kap. 1 § skall ha följande lydelse, dels att rubriken till 10 kap. skall lyda Nedsättning av aktiekapitalet m.m., dels att i 10 kap. skall införas en ny paragraf 28 av följande lydelse. Nuvarande lydelse1 Föreslagen lydelse Om behörigt anspråk på fondaktie inte har framställts från registreringen av emissionsbeslutet, kan styrelsen anmana den berättigade att ta ut aktien med underrättelse om att han annars förlorar den. Anmaningen skall sändas till den berättigade, om hans namn och adress är kända för bolaget. I annat fall skall anmaningen kungöras i Post- och och, i ett privat aktiebolag, den eller de ortstidningar som styrelsen bestämmer eller, i ett publikt aktiebolag, en Om den anmanade inte gör Om den anmanade inte gör anspråk på aktien från anspråk på aktien från anmaningen, kan aktien säljas anmaningen, kan aktien säljas