The background for this dissertation is that in approximately 7 out of 10 companies, shareholders' agreements are entered into. Studies further show that ownership agreements typically consist of reactive provisions. An absence of proactive provisions calling for cooperation and incentive compatibility has thus been identified. The purpose of the dissertation is to examine whether it is possible to create incentive compatibility between the owner-manager and the investor in the fictional case company. The section on the structure of limited liability companies will explain and set out the framework for the company law universe in which the challenge unfolds. The legal analysis assesses the function of shareholders' agreements and analyzes four selected provisions. It is then investigated what options the parties have for introducing and regulating incentive regulation in the ownership agreement to establish shared interests. Based on the parties' respective risk profiles, the economic analysis will examine whether variable remuneration can help to prevent moral hazard and create incentive compatibility between the ownermanager and the investor. The integrated analysis initially assesses whether Dyer and Singh's four conditions for creating relational rent are met. The dissertation further proposes how the shareholders' agreement's four provisions on pre-emption right, tag-along and drag-along right, non-performance and renegotiation can be adjusted, so the revealed issues are eliminated. The dissertation concludes that shareholders' agreements are broadly defined as agreements that regulate ownership and management. Freedom of contract applies to the agreements, which entails that the parties are free to decide what they want to regulate. Shareholder’s agreements are, however, not binding for the company and only apply to inter parties, cf. KSL § 82. The agreement can, therefore, as a starting point, only be enforced between the parties. It is further concluded that the four provisions of the ownership agreement are predominantly reactive and vaguely worded. This can lead to interpretation doubts and disputes between the parties, and the agreement should therefore be revised. It is recommended that the agreement incorporates proactive provisions which will ensure incentive compatibility and goal congruence for the parties. Contingent shares can help to ensure that the parties work towards the same goal and that the owner-manager is rewarded, so his motivation is optimized based on a utilitarian theoretical consideration. It is further recommended to establish a board of directors. A board position will not only cause the investor to go from being a passive to an active investor but also bring the complementary resources into play, so the parties can generate relational rent in the partnership.
|Educations||MSc in Commercial Law, (Graduate Programme) Final Thesis|
|Number of pages||120|