Share swap
A share exchange (Engl. Stock swap ) (or share exchange ) is an agreement on corporate takeovers , according to which the purchase price for a company in whole or in part by mutual exchange of treasury shares financed should be.
General
When a company (“target company” or “target”) is acquired by a company willing to buy (“buyer”), a purchase price is agreed for the target company that is to be paid by the buyer. The purchase price can be paid in full, in part or in combination by cash , bank loan or share swap. The prerequisites for the exchange of shares are that both the target company and the buyer are stock corporations or limited partnerships on shares and that they hold their own shares or have the authorization to issue new shares.
As an alternative to a company acquisition with payment of the purchase price in shares, a merger can also take place; Here too, the shareholders of the target company receive shares from the buyer; however, the two alternatives differ in terms of their legal effect, insofar as the target company continues to exist in the event of a purchase (as a subsidiary of the purchasing company), while it is merged into the purchasing company.
species
A distinction is made between the exchange of shares for shares already in circulation (i.e. shares in the company's own holdings, whereby the stock of own shares is limited by law to 10%) and an exchange of shares for "young" shares, which are achieved through a capital increase (capital increase against contribution in kind, whereby the Shares of the company to be taken over represent the contribution in kind) must first be issued. In the case of a capital increase, the company must have the necessary approval from its general meeting , ie the purchase is conditional on the consent of a general meeting to be convened if the existing authorizations are insufficient.
As a rule, the larger buying company takes over a smaller target company. A special form is the so-called reverse takeover , in which a smaller company acquires a larger company with its own shares.
Legal issues
The stock exchange does not constitute a replacement within the meaning of § 480 BGB is, if the shares of the target company are acquired in such a way that the buyer is a capital increase by issuing new shares carried out and the shareholders of the target company their shares in return for new shares of the buyer contribute to the company willing to buy.
Only since March 1998 has stock corporations in Germany been allowed to acquire their own shares for the purpose of stock swapping. The stock corporation law created the conditions for the acquisition of own shares. In Section 71 (1) AktG, however, the acquisition of own shares is severely restricted. The repurchase of own shares is permitted for exchange purposes according to Section 71 (1) No. 8 AktG, but it may not exceed 10% of the share capital . The restrictions resulting from a buyback in accordance with Section 71 (1) No. 8 AktG also put a strain on the buyer's liquidity . Such disadvantages do not apply if a share exchange takes place through a capital increase against contribution in kind according to §§ 182 and 183 AktG.
The German Securities Acquisition and Takeover Act (WpÜG) of January 2002 deals with the consideration that the buyer has to offer. Public purchase and exchange offers according to Section 2 (1) WpÜG relate to exchange offers to acquire securities (shares or securities representing shares) of a target company. In return, this must provide a corresponding consideration, which can consist of money or securities. If the consideration is in money, there is a purchase offer ; in the case of an exchange offer , there is a contribution in kind. According to Section 2 (4) WpÜG, the buyer does not necessarily have to be an AG. In the WpÜG, the legislature did not consider that it was not an exchange in the technical sense of the BGB. The respective consideration for (voluntary) takeover offers and the mandatory offer is uniformly regulated in Section 31 WpÜG in conjunction with Sections 3 ff. Of the WpÜG Offer Ordinance. You can then choose between cash compensation and share swap. The BaFin has a tender offer forbid if consideration obviously not appropriate or in kind is inadmissible ( § 15 para. 1 no. 2 WpÜG).
Accounting
In the case of the buyback of own shares, since January 2010 these may no longer be capitalized according to Section 272 (1a) HGB , but must be deducted from the share capital (also IAS 32.33). If the share swap takes place by passing on the shares of the target company to the buyer's shareholders, the buyer must cancel the offsetting against the share capital, since the own shares are deemed to have been sold as a result of the share swap (Section 272 (1b) HGB). According to Section 160 (1) No. 2 AktG, treasury shares must be listed separately in the notes to the annual financial statements .
Individual evidence
- ↑ Stefan Erbach, German Takeover Law , 2011, p. 50
- ↑ Markus Käppler: The withdrawal of purchase and takeover offers according to the WpÜG. 2008, p. 51.
- ↑ Markus Käppler: The withdrawal of purchase and takeover offers according to the WpÜG. 2008, p. 52.
- ^ Matthias Santelmann, in Roland Steinmeyer / Michael Häger: WpÜG , 2nd edition, 2007, § 2 Rn. 6th
- ↑ Markus Käppler: The withdrawal of purchase and takeover offers according to the WpÜG. 2008, p. 60.
