Egne aktier og tilbagekøbsprogrammer: En finansiel og erhvervsretlig analyse

Abstract

This thesis provide theoretical and empirical evidence that capital structure and signaling effects are major factors for companies' choice of buying back own shares, which in general is rooted in the desire to create shareholder value. Empirical evidence indicate a positive short- and long-term effects in market value on announced buyback programs, because the market interprets such information as if the market value are underestimated, and further, that a share buyback may lead to a wealth transfers among shareholders. Though the tendency has changed, share buybacks has historically not been used in a large scale – and has typically been bought for purposes that implied, that the holding of treasury shares was temporary and thus not equivalent to dividends. Share buybacks equivalent to dividends should be calculated as the net buyback after a correction for buybacks used for option plans and/or acquisitions – however, one can only be sure that the repurchase is an actual payout to shareholders when the shares are cancelled. The total value of the net repurchase and cancellation of treasury shares for Danish large- and midcap companies were approx. 32 billion DKK for the year 2010. Overall very few industries contributed to this value, and the financial and healthcare sector were alone responsible for 77 pct. hereof. Based on the recent amendment of the Companies Act, a transverse analysis of various corporate law provisions regarding treasury shares (and the repurchase hereof) is presented. With the amendment, the Danish legislation clearly moved towards the Anglo-Saxon conception of capital protection in contrast to the previous capital protection doctrine. Despite the liberalization, the present state of law is found to have sufficient safeguards for creditors, while the shareholders’ control has not been reduced. Empirically it was found, that the new Company Act did not change the companies’ proportion of treasury shares, while further evidence suggests that the former capital protection doctrine was unnecessary. With regard to the overall topic, classic obligations and considerations under capital market law are analyzed, including (but not limited to) the disclosure requirements and the regulation of insider trading and market abuse. Further, the potential use of treasury shares in regard to (hostile) takeovers and the requirements for offer documents are discussed, as well as the specific regulation of financial institutions, which upholds the former state of law for such entities. In general, the way in which companies can acquire its own shares is unregulated, though the principle of equality must be observed. A directed share repurchase, including “green mail”, involves the greatest risk of discretionary treatment of shareholders, while an open market repurchase automatically observes the principle and simultaneous provides a high degree of flexibility. Structured repurchase programs often make use of a premium, while a group of shareholders often can be prevented from making use of the offer, which all can be in line with the principle of equality if certain measures are taken. Relevant for the initiation of repurchase programs, regulation 2273/2003 provides a good (and necessary) possibility to be exempted from the insider trading regulation. Even though the trading possibilities after regulation 2273/2003 are somewhat narrow (e.g. due to the constraints on quantity and price), the provided possibilities have been used to a large extend by Danish large- and midcap companies.