sou · GNB336 · 2000-01-01 00:00:00 — Upplösning genom avförande ur aktiebolagsregistret I aktiebolagslagen finns en bestämmelse om upplösning genom avförande ur aktiebolagsregistret. Bestämmelsen förutsätter att inte någon anmälan rörande ett bolag har kommit in till PRV . Med hänsyn till att PRV har skyldighet att bevaka att bolagen sänder in årsredovisningar och verka för likvidation av bolagen om denna skyldighet försummas kan bestämmelsen knappast längre fylla någon praktisk funktion. Kommittén föreslår därför att bestämmelsen utmönstras ur aktiebolagslagen. I aktiebolagslagen finns vissa regler om aktiebolags upplösning efter konkurs. Ett aktiebolag skall anses upplöst om konkurs ägt rum och avslutats utan överskott, s.k. underskottskonkurs. Det innebär att bolaget efter konkursen saknar rättskapacitet. Från denna huvudregel har emellertid i rättspraxis gjorts vissa undantag såvitt avser rättshandlingar nöd- vändiga för fullgörande av bolagets avveckling och andra särskilda uppgifter. Kommittén har inte sett det som sin uppgift att utreda i vilken utsträckning denna praxis bör föranleda lagstiftning. Det är, som kommittén ser det, en fråga som bör lösas i ett processrättsligt samman- hang snarare än i en översyn av aktiebolagslagen. Ett annat problem i anslutning till underskottskonkurser i aktiebolag är att det efter konkursens avslutande kan finnas tillgångar som inte omfattas av konkursen. En sådan situation kan uppkomma exempelvis om konkursboet inte utnyttjat sin rätt att överta aktiebolagets talan i en pågående process och bolaget vinner processen. Situationen har be- tydande likheter med en överskottskonkurs, vilken skall föranleda lik- vidation. Kommittén föreslår att motsvarande ordning lagfästs för det fallet att tillgång som inte omfattas av konkursen yppas efter bolagets upplösning på grund av konkurs. Även såvitt avser överskottskonkurser är lagens utgångspunkt att bolaget efter konkursens avslutande skall upplösas. Enligt gällande rätt skall stämman inom en månad från det konkursen avlutades besluta att bolaget skall gå i likvidation. Fattar stämman inte något sådant beslut skall PRV förordna om tvångslikvidation. Kommittén föreslår att denna ordning behålls, men att det i lagen öppnas en möjlighet för bolags- stämman att även i detta fall besluta att likvidationen skall upphöra och att bolaget skall fortsätta sin verksamhet, allt under förutsättning att revisor intygar att bolagets eget kapital uppgår till det registrerade aktiekapitalet och att utskiftning ännu inte ägt rum. In this interim report examines two matters, namely companies which do not have a board of directors and the solvent liquidation of companies. Companies which do not have a Board Of Directors Clearly, a company without a board of directors to represent it creates significant problems for the companys creditors. The government has instructed the Committee to consider what measures are needed in order to deal with such problems. So far as concerns companies which have no registered board of directors whatsoever, the Committee was instructed to consider reinforcing the provisions of the Companies Act relating to solvent liquidation by reducing the relevant time limits stipulated therein. was also instructed to consider the adoption of provisions making it possible for companies which have existed without a board for an extended period to be placed into solvent liquidation, notwithstanding that the company appoints a board once liquidation proceedings have been commenced. is at to consider other alternatives. Can the periods of time in the liquidation process be reduced? Where a company, according to the Companies Register, has not had a board of directors for an extended period, the Companies Registrar () initiates its procedure with a formal notice issued by ordinary mail stating that the companys board does not meet the requirements of the Companies Act and that the company should give notice of the appointment of sufficient new board members such that the board is once again quorate. The six week period usually stipulated by the Companies Registrar in such a notice is not especially long and has been chosen on the basis of the period of time required to convene and hold a meeting of the shareholders. As a result, the period cannot realistically be made any shorter. The notice procedure is reasonably effective taking account of the limited burden it places on the public administration. In of cases the notice is sufficient to get the company to take remedial action. does not, therefore, regard it as necessary to change the present notice procedure. Order to show cause If a company, having received a notice requiring remedial action, fails to file notice of the appointment of a quorate board within the time specified, the Companies Registrar goes a step further and issues an order requiring the company and its shareholders and creditors, within a specified time, to file a statement showing cause as to why the company should not be placed into solvent liquidation. The period of time is determined by the Companies Registrar with reference to the requirement that the order be gazetted in the Government Gazette (Post- och ) not less than two and not more than four months prior to expiry of the specified time. The minimum time for the filing of the statement is thus just over two months. According to the Companies Registrars practice, the time is as a rule fixed at two and a half months, which together with the notice period of six weeks means that a company without a quorate board is normally placed into solvent liquidation a more than four months after the commencement of the procedure by the Companies Registrar. The procedure to place a company into solvent liquidation for a matter as serious as not having a quorate board of directors should not, in the Committees view, take as long as it does under the present legislation and according to the Companies Registrars current practises. therefore suggests that the time for filing the statement specified in the Act should be fixed at a maximum of one month. A company which does not have a board could then be placed into solvent liquidation after six weeks plus one month, i.e. just over two months from the commencement of the procedure. This involves a fifty per cent reduction of the period presently required. Gazetting of the order The minimum time for the order stipulated in the Companies Act is determined with reference to the day of gazetting in the Government Gazette. An issue arises as to whether it is possible to abolish the gazetting procedure. The Committees response to this question is in the negative. The risk of a company being placed into solvent liquidation can have a significant impact on the companys shareholders and creditors. These parties must be afforded an opportunity of ensuring that the company is not liquidated without their knowledge. Such knowledge can be acquired through reading the Government Gazette. In the absence of the gazetting procedure, there is no other equally simple and cheap method to facilitate this supervision. The abolition of the gazetting procedure is, accordingly, not realistic. Service of the order It has not been established that the current practices relating to service of the order give rise to any significant problems. It is also clearly reasonable that an order in such an important matter as the involuntary solvent liquidation of the company be served on the company. Accordingly, the Committee does not suggest any changes relating to the obligation to serve the order on the company or the in which service is effected. The involuntary solvent liquidation of the company should be capable of being carried to conclusion irrespective of the fact that the company appoints a new board According to the Companies Register, companies sometimes exist during an extended period without having a board of directors. When the Companies Registrar initiates solvent liquidation proceedings against such a company, the company will file notice of appointment of a quorate board for registration, whereupon the Companies Registrar discontinues and terminates the liquidation proceedings. As soon as the decision has been adopted to terminate the proceedings, the new board resigns and the company files a notice to this effect, so that the company once again is without a board of directors. Registrar commences new solvent liquidation proceedings at the risk of the matter concluding in the same . It is in light of this practise that the Committee has been instructed to examine whether it should be possible in such circumstances to carry the liquidation proceedings to conclusion, notwithstanding that the company files notice of appointment of a new board. The available statistical evidence indicates, however, that there are only a very few companies, amounting to less than one per cent of all companies, which exist without a board for an extended period. is also evidence supporting an assumption that companies without a board, or with a non-quorate board, only rarely are associated with corporate piracy or other forms of economic crime. In most cases, there is a natural explanation for registered companies not having a quorate board, namely death. Registrar regularly receives information on deaths from SPAR and deregisters individuals who have passed away. There are approximately 200,000 companies where the board consists of a single member and a single deputy. Where one of these individuals dies, a new member or deputy must be appointed to the board and notice of such appointment filed with the Companies Registrar for registration. It is not safe to assume that deputies or the beneficiaries of the deceased always are aware of this and, under prevailing circumstances, immediately take the steps prescribed by the Companies Act. It is worth noting in this context that the application for probate does not need to be made immediately, but only within three months from the date of death. A provision to the effect that a company which, according the Companies Register, has not had a board of directors for three consecutive months must be placed into solvent liquidation irrespective of the fact that notice of appointment of a new board is filed during the course of the insolvency proceedings would, in the Committees opinion, have a disproportionately severe impact on sole traders and closely held companies. On the basis of the above, the Committee does not submit a proposal for solvent liquidation of companies which according to the Companies Register have existed without a board for an extended period. The issue of registered board members who dishonestly assert that they have resigned A report from the Office of the Public Prosecutor submitted to the government asserts that it is common for individuals who are recorded in the Companies Register as directors allege that they in fact resigned prior to a specified critical point in time and that they cannot, as a result, be held liable for actions taken thereafter in the companys name. On occasion, falsified minutes of a shareholders meeting or a board meeting are tendered in support of the allegation. In order to rectify the problem the Office of the Public Prosecutor submitted that changes in the composition of the board should first take effect upon registration of the changes with the Companies Registrar. Committee has been instructed to examine whether there are any problems associated with the proposed solution. Act contains provisions on the legal effects of registration. The purpose of these provisions is to protect third parties which enter into relations with a company and must be able to assume that individuals who are registered as representatives of the company are also authorised to bind the company. The provisions were, in other words, designed to facilitate day-to-day business and are silent as to any sanctions that might be imposed on a negligent or criminal representative. That an individual is registered as a member of the board at the time a particular action is taken on behalf of the company constitutes, in the Committees opinion, a matter which supports the individual being responsible for the action, but the burden falls upon the party prosecuting the action for damages or the imposition of a criminal sanction to establish that such is in fact the case. The evidential value of registration should not, in the Committees view, be over- emphasised. Other evidence, in the form of minutes of board meetings, contractual and other documents indicating which individual or individuals participated in adopting the disputed decision or in taking the action in question, should be decisive. A system whereby responsibility as a board member starts and finishes with registration in the Companies Register would undoubtedly be inclined to create certainty as to how the board was composed from time to time, but would in the Committees view give rise to a number of practical difficulties. Thus, all companies would be required immediately in conjunction with the election of board members to file notice of which members had been elected and which had resigned. notice would give rise to problems in conjunction with decisions adopted by the new board, since the old board would remain registered and in a legal sense competent to adopt decisions in the companys name. or less every company would experience these problems given that directors are normally elected at the annual shareholders meeting and, by tradition, the new board will convene for its constitutive meeting immediately after the conclusion of the shareholders meeting. Obviously, if the constitutive board meeting is held so soon after the election of the directors, the Companies Registrar will not have time to register the new board before the meeting is closed. The most significant problem arises however, where a member of the board resigns prematurely. Currently the appointment terminates immediately upon notice of resignation being tendered to the board. The company is responsible for filing notice of resignation and the outgoing director is entitled him or herself to file notice. According to the proposed rule, the director would remain responsible until such time as notice of the resignation was registered in the Companies Register. This would have consequences for the individual wishing to resign. Assume that a member of the board during a board meeting decides that he or she does not wish to remain on the board since the majority is prepared to adopt a decision with respect to a matter which he or she regards as directly contrary to the law. The dissenting director forthwith gives notice of resignation during the course of meeting and thereafter leaves the meeting. The director files notice of his or her resignation to the Companies Registrar and the change is registered some weeks later. Clearly it should be impossible for the resigning director in this example to be held criminally liable for the decision adopted by the board after he left the room. should he or she be liable in damages for the same decision pursuant to the Companies Act. The resigning director should not be burdened with liability for either intentional nor negligent conduct. But what of the directors liability if the board after his or her departure from the room adopts a decision not to pay preliminary tax on the prescribed date and that date falls prior to registration of the directors resignation? And what if the remaining directors breach the provisions of Chapter 13, Section 2 of the Companies Act which prescribes the actions necessary in the event the company lacks the required capital adequacy for its share capital? Or fails to file the companys annual report within the prescribed time? So far as the Committee is concerned, it is clear that if provisions are to be introduced according to which an appointment as director starts and finishes with registration, a mechanism must be established linking these to responsibility for the companys future liability in the event of breaches of the type referred to. Such responsibility exists today, but the responsibility must be refined somewhat if the new provisions are to function properly. Obviously it must remain possible for a member of the board to resign and absolve him or herself from further liability through immediately filing notice of resignation with the Companies Registrar. If, however, both the director and the company fail to file such notice, the director together with the remaining members of the board must be responsible for the companys pending responsibilities. Clearly the results of this can be perceived as unfair in specific cases. Taken as a whole, the Committee is of the view that the benefits of the proposed solution do not outweigh the disadvantages. therefore does not submit any proposal to the effect that changes in the composition of the board should first take effect upon filing of notice or registration of the changes with the Companies Registrar. A company can be wound up, inter alia, through solvent liquidation. This can take the form either of voluntary or involuntary solvent liquidation. That the shareholders should be able to wind up the affairs of the company if they so wish is self evident. A decision to place the company into voluntary solvent liquidation is adopted under the current legislation by a simple majority of the shareholders meeting. does not suggest any changes to this procedure. The current legislation does not prescribe what material should be available when the shareholders are considering a motion to place the company into voluntary solvent liquidation. suggests amendments in this regard applying the model used in the provisions relating to increases and reductions of share capital. Involuntary solvent liquidation as a result of capital inadequacy An important element of the liquidation provisions contained in the Companies Act relates to involuntary solvent liquidation as a result of capital inadequacy. In brief, the provisions provide that the board, as soon as there is reason to believe that the companys shareholders equity is less than half of the registered share capital must immediately prepare a special balance sheet and as soon as possible submit a question to the shareholders meeting as to whether the company should be placed into involuntary solvent liquidation. If the shareholders meeting resolves that the company should continue to trade, the shareholders must, within eight months from its resolution to this effect, contribute additional capital to cover the shortfall. If the shareholders meeting fails within this period to establish through the preparation of a further special balance sheet that the shareholders equity covers the full amount of the registered share capital, the company is obliged to go into involuntary solvent liquidation. If the shareholders meeting does not resolve to place the company into liquidation, the board is obliged to file an application for liquidation with the court. Such an application can also be filed by a single member of the board, the managing director, auditor or a shareholder. Members of the board who fail to comply with the act are personally liable for the obligations of the company accruing after such failure. The same applies to shareholders who, despite being aware of the obligation to place the company into liquidation participate in a decision to the effect that the company is to continue trading. In the Committees view it remains highly desirable, in the interests of the companys creditors, to fix a threshold defining how low the shareholders equity should be permitted to fall before the company will be forced to cease trading and be placed into liquidation. therefore suggests that the Companies Act continue to contain provisions relating to involuntary solvent liquidation as a result of capital inadequacy. Certain minor amendments should however be made with respect to the provisions concerning the special balance sheet and personal liability for payments. So far as concerns the special balance sheet, the Committee suggests that the Companies Act prescribe that the balance sheet should be prepared on the basis of applicable law relating to the preparation of annual reports and that the following adjustments be made relating to the valuation of items taken up in the balance sheet: 1.Assets may be valued at their disposal value or, so far as concerns plant and equipment which are subject to normal depreciation, at their acquisition value reduced by necessary depreciation and any amount to be written-down. 2.Debts relating to government subsidies with respect to which the liability to repay is dependent upon the companys financial wherewithal may be excluded from the special balance sheet, provided that the subsidy – in the event the company is placed into insolvent liquidation (U.S. bankruptcy) or solvent liquidation – is subordinated to the other debts of the company, i.e. is to be repaid first when the other debts of the company have been repaid. 3.Debts relating to payment of future tax may be taken up at current value. 4.Untaxed reserves shall be split up into equity capital and debts relating to payment of future tax. 5.Pension liabilities which, according to generally accepted accounting practices, could have been excluded from the annual report but which are taken up as a debt in the balance sheet, need not be taken up in the special balance sheet. This does not apply, however, to liabilities reported under the heading Allocated to pensions and which may not be reduced according to Section 7 of the Pension Obligation Guarantee Act (SFS 1967:531). The list is intended to be exhaustive. The sanctions which may be imposed in the event of a failure to prepare the special balance sheet and a failure to place the company into involuntary solvent liquidation in the event of capital inadequacy are far reaching and accordingly require clear and simple rules in order to avoid any legal uncertainty. If the members of the board fail to comply with the obligations relating to involuntary solvent liquidation imposed on them in the event of capital inadequacy, they are jointly and severally liable for any obligations of the company, irrespective of whether the companys creditors have suffered any loss as a result of this failure. suggests that the Companies Act explicitly indicate which instances of failure are intended in this context, namely: that the board fails, notwithstanding that the relevant criteria have been met, to prepare a special balance sheet in the prescribed; that the board fails to convene the first extraordinary meeting of the shareholders, despite the fact that the special balance sheet discloses that the shareholders equity is less that half the registered share capital; that the board fails to convene the second extraordinary meeting of the shareholders within the prescribed time of eight months; and, that the board fails to apply to the court for an order that the company be placed into involuntary solvent liquidation, notwithstanding that the second extraordinary meeting of the shareholders has not approved a special balance sheet confirming that the shareholders equity is fully covered. In accordance with the practice of the Supreme Court, the Committee further suggests that the text of the act be expressed in such a way that it clearly states that personal liability only arises if the companys shareholders equity at the relevant point in time in fact has fallen below the critical threshold.