Beginselen van uitgesteld eigen vermogen : uitgestelde eigenvermogensinstrumenten herdacht aan de hand van de fundamenten van het vennootschapsrecht; de fundamenten van het vennootschapsrecht herdacht aan de hand van uitgestelde eigenvermogensinstrumenten

From time to time, companies organise capital raisings to finance themselves. The company then obtains additional funds in exchange for issuing new shares. Business leaders have also become more creative with equity structures, with the granting of rights to subscribe for future shares, making commitments convertible into new shares, and undertakings to give a preferential treatment to certain potential investors in future capital rounds. Today, there is much uncertainty about the legal rules applicable to these techniques. The Code of Companies and Associations does offer a handful of legal provisions on so-called subscription rights, convertible bonds and a statutory preferential right, but their scope is limited, and their meaning sometimes unclear. The doctoral research aims to shed more light on the legal rules governing such practices in a “besloten vennootschap” and “naamloze vennootschap”. The research first establishes that an issuance of new shares can be regarded as the legal effect of a contract. Such a “subscription and issuance contract” is governed by the common law of obligations. Accordingly, the conclusion of such a contract may itself be the subject of another legal act. Subscription and conversion rights can be regarded as applications of the common law promise to contract. The statutory preferential subscription right can be analysed as a preference contract. The research shows that the contractual logic nevertheless has its limits, due to the peculiar nature of the legal figure of the company itself. Therefore, the subscription and issuance contract, and the legal acts preceding such a contract, must be qualified foremost as “sui generis”. To concretise that sui generis nature, the doctoral thesis develops its own conception of the company, through systems analysis and a distinctly functional conception of law. It contends that the company can be approached in two ways, depending on the relevant perspective. Regarding share issuances, this corporate theory implies that an investor concludes a contract with either the company or its existing shareholders. Based on these new qualifications and corporate theory, the doctoral thesis examines in detail the concrete legal rules applicable to subscription rights, convertible bonds and the statutory preferential right. From that analysis, certain principles for other, atypical “deferred equity acts” and instruments follow. The research is not evaluative, but it does end with some key recommendations de lege ferenda. It proposes a limited systematisation, thorough rationalisation, and pragmatic liberalisation of the existing rules on share issuances and deferred equity acts.