(N.B. This English article constitutes an unofficial translation of the Swedish version).
This Sunday, 1 March 2026, the new legislation that criminalises unauthorised financial activites enters into force. At the end of January 2026, we published an article on the major consequences the criminalisation may have for issuing underwriters. Below is an update on developments since the article was published.
The number of rights issues has halved
In a recently published article, Nyemissioner.se notes that the number of rights issues is currently half of last year’s level, and that the number of directed share issues has increased. In addition, some ongoing rights issues lack underwriting arrangements or include underwriting structures with no underwriting fee. It is likely that these effects are a consequence of the criminalisation.
The SFSA has published guidance (Q&A)
In our article, we note that the criminalisation creates a real risk that rights issues will no longer be possible to underwrite in listed growth companies. We also point out that one way to counter an unjustified negative market effect would be to clarify when licensing requirements arise in connection with underwriting. The Swedish Financial Supervisory Authority (the “SFSA”, Sw. Finansinspektionen) has since published guidance in the form of questions and answers (last updated on 23 February 2026) to clarify when licensing is required.
The guidance highlights the following factors as particularly relevant when assessing whether underwriting is carried out on a professional basis (and therefore requires authorisation):
• More than isolated assignments indicate professional activity
• Marketing underwriting services (e.g. through advertising) indicates an authorisation requirement even if the marketing results in only a few assignments
• Factors such as the service forming part of the business model, the existence of an organisation to provide the service, and underwriting generating income (directly or indirectly) also indicate professional activity
• The SFSA emphasises that an overall assessment must always be made in the individual case, and that there is no exact numerical threshold
According to the guidance not only external investors but also existing shareholders who provide underwriting commitments in an offering for the benefit of their own company may engage in professional underwriting activity. It is also notable that the guidance does not explicitly address sub-underwriters and does not provide any clear threshold values that would with certainty distinguish licensable from non-licensable activity. Significant uncertainty as to when an authorisation requirement applies therefore remains.
Although the guidance only addresses underwriting and firm commitment placing, it may provide guidance when assessing the “professional basis” requirement also in respect of other licensable activities under the Swedish Securities Market Act. The guidance may also provide guidance when assessing the “professional basis” requirement for such credit activities requiring registration under the Swedish Certain Financial Operations Act (e.g. bridge loans provided in connection with rights issues).
A potential market solution has been announced
In Oncopeptides’ rights issue (announced through press release on 19 February 2026), a number of unnamed parties have entered into put option agreements with DNB Bank ASA against consideration. In the Equity Issuing Guide (Sw. Emissionsguiden), the company’s head of investor relations confirms that the structure is a consequence of the criminalisation and that the parties would likely otherwise have entered into customary underwriting undertakings with the issuer.
In brief, the solution entails:
• A licensed underwriter enters into an underwriting agreement with the issuer
• The underwriter enters into put option agreements with a number of parties (option writers)
• The option writers are entitled to a pre-agreed compensation (option premium) from the underwriter
• If the underwriter is allocated shares in the issue, the option writers must purchase the shares in accordance with the put option agreements
It is not entirely clear whether option writers will be described in prospectus/information documents. Since an option writer, by definition, must not constitute an underwriter/sub-underwriter, it is likely they will not wish to be described as such. At the same time, there is market interest in knowing which parties will be allocated shares if the rights issue is not fully subscribed.
Furthermore, it is unclear to what extent the underwriter bears balance sheet risk, i.e. whether the underwriting agreement applies unconditionally or whether it is, to some extent, contingent on the option writer actually paying for the put options. If the underwriter bears the balance sheet risk, it is reasonable to assume that, as part of its KYC process, the underwriter will impose stringent requirements on the option writer’s ability to pay.
In such a situation, it is also reasonable to assume that the underwriter will charge for its risk exposure and that this cost will be passed on to the issuer. In Oncopeptides’ ongoing rights issue, the underwriting fee amounts to 12% for top-underwriters and 9% for bottom-underwriters, compared to the company’s most recent rights issue in autumn 2025, where the underwriting fee amounted to 8% for both top and bottom underwriting commitments. It cannot be ruled out that the increase is partly attributable to the new underwriting structure. In addition to increased underwriting fees, the underwriter may negotiate a larger discount in the subscription price to reduce its risk exposure.
With respect to smaller listed growth companies, it is not self-evident that a licensed underwriter will be willing to participate on terms acceptable to the issuer. Particularly in this segment, uncertainty therefore remains due to the criminalisation.