Issuer (financial market)
An issuer is an economic entity that issues securities or similar documents on the money or capital markets for the purpose of raising capital or who have them issued with the help of a banking consortium . The central banks are also sometimes referred to as issuers when issuing money as legal tender .
General
The economic subjects that come into question as issuers include companies and the state and its subdivisions. For the issuer, the issue serves to procure or increase equity or debt capital as well as to increase market capitalization . The process of issuing securities is called an issue . When raising equity, shares are issued, while debt is raised through the issue of bonds . Stocks and bonds are traded on the capital market, participation certificates , convertible bonds and other mezzanine capital as an intermediate form between equity and debt are also commercial property in the capital market. Commercial papers or medium-term notes as short to medium-term credit securitization are objects of trade in the money market.
Type of issuer
The issuer according to EC regulation 1287/2006 (Chapter 1 Article 2 No. 2) is a person who issues transferable securities and, if applicable, other financial instruments . Even if this legal definition does not expressly exclude natural persons as issuers, industrial , commercial or transport companies , credit institutes , insurance companies or regional authorities including the state that are capable of issuing emissions come into question. As soon as these institutions do not cover their external capital requirements by borrowing directly or do not use internal financing for their equity capital , but choose securitization through securities, their function as issuers begins. The term “issuer” is therefore closely linked to the term “securities”. In addition, the issuer must be able to issue. It exists when the expected market value of the shares to be admitted or the equity of the issuer within the meaning of Section 266 (3) Letter A of the German Commercial Code ( HGB) in accordance with Section 2 BörsZulV is at least EUR 1,250,000 or 10,000 shares.
Type of issue
Security issues can be differentiated according to their frequency and the interest that an issuer is pursuing. There are also public and non-public issues.
According to the frequency
If an issuer places securities for the first time, it is a new issuer ; Issuers with a permanent presence on the money and capital markets are accordingly named regular issuers . New issues - even if an issuer appears on the capital market for the first time in many years - are subject to special attention from all market participants , especially from banks, investors and the media. The IPO belongs in this context to the new issues. The regular issuers include in particular credit institutions that permanently need outside capital to finance their lending business.
According to the issue interest
In self-issuance, the issuer places its own securities in its own name and for its own account. He then acts as a direct counterparty to the investor public and as a result has to assume the sales risk himself, whereby the complete technical processing is to be organized by him. This is why self-issues mostly occur at credit institutions. For legal reasons, other companies can only act as self-issuers if the issue takes place over the counter .
In the case of third-party issues, the issuer makes use of one or more credit institutions that act as an issuing consortium and carry out the securities issue for the issuer. The members of a consortium have the expertise and sales organization necessary for the securities issue . In addition, the technical processing is taken over by the consortium, which - in the case of a takeover consortium - also bears the sales risk.
Public and non-public issuance
The issuers need the support of at least one credit institute for the IPO, because § 32 Para. 2 BörsG requires the cooperation of credit institutes when admitting securities. This hurdle can only be avoided in the case of self-issues by way of private placement outside the exchange. In the case of securities issues in the context of private placement, the offer is only directed directly to a few investors and is not published - for example in an issue prospectus. This form of over-the-counter marketing usually takes place without any public participation.
Legal issues
The issue of securities is regulated by law in some areas. Section 32 (2) of the BörsG requires that the issuer of the securities applies for admission to trading on the stock exchange together with a bank. This does not apply if the applicant is a credit institution himself. In both cases, the credit institution must be admitted to a domestic stock exchange with the right to participate in trading. This is to ensure that issuers who are not themselves credit institutions use the technical expertise of the credit institutions. The legislature has a legal interest in protecting creditors and shareholders as far as possible and in ensuring orderly exchange trading.
Listing
The issuer and its securities must comply with the provisions that have been issued for the protection of the public and for orderly stock exchange trading . The issuer must have existed for at least three years ( Section 3 Paragraph 1 BörsZulV ), the securities must comply with securities law ( Section 4 BörsZulV), be freely tradable ( Section 5 BörsZulV), have sufficient free float ( Section 9 Paragraph 1 BörsZulV), Certain documents must be attached to the application for admission in accordance with Section 48 (2) BörsZulV. The admission is published by the management at the expense of the applicant in the Federal Gazette ( Section 51 BörsZulV).
In accordance with Section 33 (1) of the BörsG, securities can be included in the regulated market at the request of a trading participant or ex officio by the management of the exchange for exchange trading if the securities are already for trading on another domestic exchange in the regulated market, in another Member State of the European Union or in another signatory state to the Agreement on the European Economic Area for trading on an organized market or a market in a third country, provided that admission requirements and reporting and transparency obligations exist on this market that are comparable to those in the regulated market for admitted securities and the exchange of information for the purpose of monitoring trade with the responsible bodies in the respective state is guaranteed.
In Section 34 No. 1a BörsG, the Federal Government is authorized to specify the requirements for the issuer with regard to its legal basis , its size and the duration of its existence by means of a statutory ordinance . This was done through § 3 BörsZulV , according to which the issuer of the shares to be admitted must have existed as a company for at least three years and must have disclosed its annual financial statements for the three financial years preceding the application in accordance with the applicable regulations.
Another important basis for admission is an admission prospectus based on the Securities Prospectus Act or a detailed sales prospectus within the meaning of Sections 164 , 165 and 166 KAGB . The prospectus must also be signed by the accompanying credit institution. If the consortium and the issuer submit the application for admission to the stock exchange, it assumes full prospectus liability ; in the internal relationship with the issuer, a claim for indemnification from liability as the initiator of the prospectus is then regularly agreed, so that the issuer is ultimately solely liable for the contents of the prospectus.
Reporting obligation
Pursuant to Section 41 BörsG, the issuer admitted to stock exchange trading must provide certain information that is necessary for the proper fulfillment of the duties of the stock exchange with regard to admission and listing of the securities. Further reporting obligations of an issuer result from § § 48 , § 49 and § 50 WpHG .
The issuer of investments is legal bids encouraged the public offering of an investment a prospectus to be preceded by ( emission publicity ; § 14 para. 1 WpPG ), periodically to report on the performance of the investment ( usually publicity ; ff §§ 264th HGB in conjunction with Section 325 HGB); To publish interim reports ( Section 116 WpHG) and extraordinary circumstances promptly ( ad hoc publicity ; Section 26 WpHG). Section 63 of the WpHG also contains numerous requirements (“general rules of conduct”) .
Underwriting consortia
The issuing consortium carries out the issue of securities (in particular shares or bonds; IPO) for an issuer as part of the agency (§ § 675 ff. BGB ) by placing them on the money or capital market or holding them in its own portfolio. The consortium advises and supports the issuer in the various phases of the issue. The first phase is the needs assessment, which is followed by the preparation of the prospectus. Thereafter, the admission procedure for the securities to be issued is carried out in cooperation with the relevant stock exchange, supervisory and settlement agencies. In Germany, these are in particular Deutsche Börse , BaFin and Clearstream . After approval, the placement finally follows, for which the issuing syndicate can use the stock exchange, private placement (direct sales via the branches of the syndicate banks) or takeover into its own portfolio as distribution channels .
Underwriting consortia (securities) are issuing consortiums in accordance with section 1 (1) sentence 2 no. 4 KWG if only a finance commission business is assumed. Then the placement risk remains with the issuer ( English effort best ). With underwriting, on the other hand, the lead manager makes a binding commitment to the issuer to take over the entire issue amount (hence also: takeover consortium), whereby the lead manager and / or the consortia run the risk of having to place or take over the entire issue alone in the worst case. In the case of share issues, the takeover consortium is the only option so that the planned capital increase comes about and can be entered in the commercial register. For regulatory purposes, underwriting is considered an issuing business in accordance with Section 1 (1) Sentence 2 No. 10 KWG.
Issuer Risks
The issuer risk consists of the risk that the issuer will not be able to meet the financial obligations entered into. In the case of bonds or certificates, this can consist of a deferral , only partial interest payment or only partial repayment at the end of the term, but in the worst case it can result in total loss for the creditor. Accordingly, there is at share a bankruptcy risk, including both a dividend may mean for the shareholder fails over a dramatic decrease or even a complete failure.
The importance of the issuer risk became evident in the financial crisis from 2007 . For example, after the insolvency of Lehman Brothers in September 2008, the certificates issued by this bank were initially suspended from trading on the stock exchange. A total failure for the investors had to be expected.
See also
Individual evidence
- ↑ Regulation (EC) No. 1287/2006 of the Commission of 10 August 2006 (PDF)
- ↑ Hans G. Linder / Volker Tietz, Das große Börsenlexikon , 2008, p. 71
- ↑ Jürgen Ellenberger, prospectus liability in securities trading , 2001, p. 26
- ↑ Francesco De Meo, Banking Consortia , 1994, p. 151 f.
- ↑ Sabine Rohde, Ad-hoc Publicity according to the Securities Trading Act , 1998, p. 12
- ↑ Article in FTD of September 16, 2008 ( Memento of July 30, 2010 in the Internet Archive )