Selskabets afgivelse af garantier i forbindelse med udstedelse og salg af kapitalandele
i Nordisk Tidsskrift for SelskabsretThepaper examines the possibility for a limited liability company subject to the Danish Companies’ Act to undertake warranty and indemnity obligations towards investors and underwriters when issuing equity. The legality of such obligations has historically been questioned on the basis key company law principles such as the company’s interest, the integrity of the share capital, the principle of equality of shares, the prohibition of conditional share subscriptions or share subscriptions at less than par value and the prohibition of financial assistance. Based on judgments from the Danish Supreme Court and the European Court of Justice with respect to liability for listed issuers, it is concluded that the issue has largely been settled and that companies can generally undertake warranty and indemnity obligations when issuing equity. The legal situation is less clear when a transaction also includes the sale of existing shares. In these situations, it is helpful to distinguish between listed and privately held companies as a company obligation is more often justifiable for listed companies.