The Danish Companies Act

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1 The Danish Companies Act A MODERN AND COMPETITIVE EUROPEAN LAW PAUL KRÜGER ANDERSEN EVELYNE J.B. SØRENSEN DJØF PUBLISHING

2 The Danish Companies Act a modern and competitive European law

3 Paul Krüger Andersen & Evelyne J.B. Sørensen The Danish Companies Act a modern and competitive European law DJØF Publishing 2012

4 Paul Krüger Andersen & Evelyne J.B. Sørensen The Danish Companies Act a modern and competitive European law 2013 by DJØF Publishing Jurist- og Økonomforbundets Forlag All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the Publisher. Cover: Bo Helsted Print & Binding: Ecograf, Højbjerg Printed in Denmark 2013 ISBN Sold and distributed in Scandinavia by: DJØF Publishing, Copenhagen, Denmark forlag@djoef.dk Sold and distributed in North America by: International Specialized Book Services (ISBS) orders@isbs.com Sold in all other countries by: The Oxford Publicity Partnership Ltd djof@oppuk.co.uk Distributed in all other countries by: Marston Book Services Jurist- og Økonomforbundets trade.orders@marston.co.uk Forlag

5 Table of Contents Table of Contents The Danish Companies Act a modern and competitive European Act Abbreviations Chapter 1. Introduction Freedom of choice for companies in Denmark Scope of the Danish Companies Act Some historical features of Danish Company Law The Danish Public Companies Act of The Danish Public Companies Act of The Danish Public Companies Act of 1973 and the Danish Private Companies Act of EU harmonisation Modernisation of Danish Company laws Chapter 2. Objectives of the Danish Companies Act Introduction The influence of economic theory: A new paradigm in company law Overview Shareholder/stakeholder value in Danish law A Market for Corporate Control in Danish law Companies capital structure Normative and publicity system Regulation or de-regulation Recommendations on Corporate Governance in Denmark Registration and control The Danish Business Authority

6 The Danish Commerce and Companies Appeals Board of the Danish Ministry of Business and Industry The Listing Authority and the Danish Financial Supervisory Authority Chapter 3. Corporate laws include various types of companies Functional division between public companies and private companies Listed companies, etc Regulation Regulated markets and alternative markets Single-member companies Groups State-owned companies Companies subject to specific legislation or concession Chapter 4. International company law The internationalisation of business and company law Rules concerning applicable international law Denmark applies the incorporation theory Cooperation across national borders and transfer of seat EU rules on establishment Rules on the primary establishment of companies and transfer of seat, cross-border mergers and divisions Secondary establishment The international scope of the Danish Companies Act Chapter 5. Formation of a limited liability company Purpose of the rules of formation Founder requirements Memorandum of association Articles of association The company s name Registered office (hjemsted) The company s object(s) Shareholders agreement Subscription for and payment of share capital Shares subscription Payment of share capital Application for registration of the company

7 Registration of the company Shelf companies Electronic registration Chapter 6. The shares Clarification of the term Issuing of shares Shares with different rights Shareholder rights Disclosure of company ownership public register of shareholders and notification of significant shareholdings Transfer of shares Restrictions on transfer Chapter 7. Financing of companies Introduction Capital increase Introduction Capital increase in connection with an initial public offer Conversion Bonus shares The shareholders pre-emption right Intermediate forms Convertible debt instrument Profit-sharing debt instruments Warrants and other intermediate forms Chapter 8. Capital protection Introduction Capital reductions General rules Depreciation to cover loss Amortisation Loss of capital Own shares Legal development The implementation of the Capital Directive Full liberalisation The authorisation requirement

8 Exemptions Other rules that have been maintained Consequences of acquiring own shares Problems relating to securities law Acquisition and sale of own shares Financial assistance using the limited liability company s own funds Self-financing Financial assistance to parent companies, shareholders, members of the management and others Consequences Compliance test/verification Dividends and consolidation Which amounts can be distributed as dividends? Consolidation requirement Consequences of unlawful distributions Chapter 9. The Danish governance system A flexible governance system The traditional Danish model The new Danish management model Features common for both systems The company s management Composition and function The board of directors/supervisory board The executive board The tasks of the supervisory board Duties and responsibilities of the management Right of representation and power to bind the company Conflict of interests between the management and the company: duty of loyalty Disqualification Insider dealing and market manipulation Economic assistance ( shareholder loan ) Takeover-bids Duty of confidentiality Remuneration Chapter 10. Employee co-determination General background

9 10.2. Representation at board level The purpose: communication with and influence within the company s supreme governing body The representation Employees right to access to information, if there is no representation The legal position of employee representatives Employee influence as a shareholder equity-based and share-based remuneration Chapter 11. The general meeting Introduction Shareholders right to participate and take decisions at general meetings Ordinary and extraordinary general meetings Conduct at general meetings Notice of general meetings Agenda Access to the general meeting Voting rights Chairman Voting The right to ask questions Electronic communications and electronic general meeting Introduction Electronic general meetings Electronic board meetings Electronic communications Chapter 12. Minority protection Overview and key principles Individual rights unanimity rules Qualified majority Amendments to the articles of association Section 107(2) of the Companies Act Statutory provisions for dividends and the displacement of the legal relationship between equity classes Restrictions on voting rights, voting ceiling Right of redemption as a result of statutory changes (CA Section 110)

10 12.4. The general clause Minority rights Legal consequences of void resolutions passed at the general meeting Chapter 13. Accounting and auditing Annual report The Financial Statements Act introduction Features of the annual report Structure and components of the annual report Quality requirements and basic assumptions Recognition and measurement (valuation rules) Business combinations Publication and control The Financial Statements Act and the Companies Act Audit Legal framework Requirements applying to auditors auditors as the public s representative Auditing: objectives and scope Audit exemptions for small companies Audit committees Liability of auditors Special examination Chapter 14. Liability for damages and criminal liability Liability for damages Who can be liable? Liability for damages in connection with the formation of the company The liability in tort of members of the management Liability towards the company Liability towards single shareholders Liability towards single creditors Shareholders liability Actions for damages Criminal liability and other legal consequences Chapter 15. Groups of companies The group concept

11 15.2. Definition of groups of companies Formation of a group Managerial rights of the parent company Protecting the subsidiary s creditors Liability, lifting the corporate veil and identification Minority shareholders of the subsidiary Employee representation at group level Consolidated accounts and more Chapter 16. Dissolution and restructuring Dissolution versus restructuring Dissolution of private and public companies by declaration Bankruptcy or solvent liquidation? Solvent liquidation The purpose of the rules applying to liquidation Compulsory dissolution and voluntary liquidation Appointment of the liquidator Commencement of the liquidation Liquidation The tasks of the liquidator Accounts Settlement of debts Realisation of assets Distributions and dividends Liability of liquidators The legal effect of liquidation Termination of the estate Resumption of business Restoration Compulsory dissolution Mergers Introduction Merger conditions Resolution to implement a merger Legal effects of a merger Protection of the positions of shareholders and creditors Division Introduction Definition and types of divisions Division procedure

12 Simplifications applying to private companies Protection of the shareholders and creditors interests Cross-border mergers and divisions Majority takeover and takeover bid Mandatory offers according to Section 31 of the Securities Trading Act Offer document: mandatory and voluntary bid Duties of the board in the event of takeover bids Agreements on bonuses and similar benefits and payments Conversion The Danish Companies Act Index

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