Zamenljive obveznice in obveznice z delniško nakupno opcijo ter pogojno povečanje osnovnega kapitala : doktorska disertacija

slovenian

doktorska dela

2018

Univerza v Mariboru, Pravna fakulteta

Convertible bonds and bonds with stock purchase warrant are bonds, which represent instruments of so called mezzanine capital, for they combine elements of equity as well as debt capital. Although these bonds are fundamentally classified as instruments of joint stock company's debt financing, they are marked with an important additional quality: their holders may on certain conditions obtain company's shares. The right to obtain shares, incorporated in convertible bonds and bonds with stock purchase warrant, on the other hand brings about a risk for the existing shareholders, namely a risk of dilution of their shares. It is therefore necessary to protect their legitimate interests. Following the example of comparative legal regulations Slovenian legal system establishes a two-level safeguard: (i) it sharpens the conditions for issue of these bonds, because the management may carry out the issue only under a consent of general assembly; (ii) it secures to the shareholders a right to a preferential purchase of bonds in the issue procedure. A consent of the general assembly may be granted by a binding or by an authorizing resolution. The procedural framework is the same in both cases. The shareholders' preferential right may also be excluded, if special formal and substantial requirements are met. When bonds are issued on the basis of an authorizing resolution, the general assembly may authorize the management for an exclusion of the preferential right. This is essential, if necessary flexibility by acquiring hybrid capital is to be maintained. Safeguarding of shareholders by a preferential right is guaranteed not only in the issue procedure, but also in a situation when the bonds are being disposed of by the issuing company, which has precedingly obtained the bonds in a derivative way. The right of bondholders to acquire company's shares is reflected in the company's obligation to effectively secure a delivery of shares. The most appropriate mechanism for this purpose is conditional increase of share capital, as it functionally balances the interests of all relevant participants, namely those of the company, the bondholders and the existing shareholders. A fundamental condition for issue of shares is a registration of general assembly resolution on conditional increase of share capital in the judicial registry. Should that resolution be invalid, so shall also be invalid the registration of issue of shares. That is why it is necessary that a lawsuit in a litigation procedure - if a lawsuit is to be dealt with substantially - comprises two claims - the claim on ascertainment of nullity/invalidation of the general assembly resolution as well as the claim on ascertainment of nullity of registration of shares issue. By issue of shares the management is bound by two restrictions: - shares are allowed to be issued solely for a purpose, defined in the general assembly resolution; - the issue is permissible only after the shares have been fully paid. A key difference between the two is manifested in case they are violated. If management issues shares for a different purpose then the one, determined by a general assembly, the shares shall be null and void, whereas the shares shall be valid, if issued prior to their full payment.

08.08.2023