Participation certificate

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The profit participation certificate is the securitized form of a profit participation right . The exact definition and design of the profit participation certificate depends on the respective legal system.

history

Profit participation certificates are of a German construction; abroad they are comparable to non-voting preference shares (but these are shares ). Taxation of profit participation rights in Germany was still disputed in November 1881, but in July 1882 a taxation similar to that of shares was established. The Reichsstempelgesetz of April 27, 1894 determined a tax liability for "profit participation certificates and similar securities entitling to a share in the profit of a stock corporation". The Reichsgericht dealt with this for the first time in its judgment of December 3, 1888, and defined profit participation certificates as “the change in the share rights embodied in the share as stipulated in the statutes and required by the drawing of the relevant share”. In 1898, Victor Klemperer von Klemenau published a pioneering dissertation on the legal nature of participation certificates .

If in 1924 the shareholder of a stock corporation , limited partnership with shares or GmbH obtained a payment claim due to the conversion of his company to gold stocks , this was converted upon application into a claim to bearer participation certificates. Here there was the first legal definition : "The participation certificates grant no voting rights, but a corresponding share of the company's net profit and, in the event of the company's dissolution, a claim in relation to the company's assets to be distributed" (§ 12 sentence 2 Gold Balance Regulation). The revaluation law of July 16, 1925, triggered by the hyperinflation , granted the existing shareholders a profit participation right to compensate for the currency decline. The AktG of January 30, 1937 took up profit participation rights in Section 128 (2) No. 5, which was incorporated into today's AktG in 1965 with Section 221 (3) AktG . One of the first participation certificates was issued in 1961 by Ernst Heinkel Flugzeugwerke . In 1980, Bertelsmann was the first company to issue profit participation rights to employees, and in December 1983 they were included in the first capital formation act as an investment form. On December 20, 1984, it was recognized for the first time as liable equity capital by credit institutions , followed by the insurance industry in December 1986.

Germany

It is a security not regulated by law , which, depending on the individual design of the securitized rights, is more like a share and thus equity or a bond and thus debt .

Enjoyment certificate from Ernst Heinkel AG Stuttgart (1961)

Profit participation certificates are usually structured as subordinate , i. H. In the event of insolvency, the liabilities are only serviced after the claims of the other debt creditors . Like a bond, the “enjoyments” usually grant repayment of the investment amount at the nominal value at the end of the term as well as an annual interest claim. The amount of this non-guaranteed return depends - like the dividend on shares - on the annual profit of the issuing company. In the case of profit participation certificates, loss sharing up to the amount of the capital employed is often agreed.

Profit participation certificates are an instrument of mezzanine financing because they have equity and debt capital characteristics. From an economic point of view , profit participation capital is viewed as equity , primarily because of its subordination and profit-related interest. Nevertheless, a participation certificate does not contain any voting rights . For tax purposes, profit participation certificates are treated as debt if the investor has not agreed to participate in the company's profits and liquidation proceeds . In this case, the distributions are tax-deductible as business expenses. Therefore, many profit participation certificates in Germany exclude participation in the liquidation proceeds.

Profit participation certificates come as bearer , order and also as registered paper and often have a limited term that ends with the expiry of the deadline or termination and repayment. For the issuance of participation certificates by public companies in is Germany a three-quarters majority in the least general meeting required is also open to shareholders a subscription right to. Nonetheless, the issue of profit participation certificates is not linked to a specific legal form.

Participation certificates can be sold every trading day. Accrued interest is not calculated for participation certificates: They are quoted “flat”; instead, the respective rate includes the arithmetically accrued interest.

Credit institutions of different legal forms can, under certain conditions, add the capital obtained by issuing profit participation certificates to the liable equity capital . Profit participation rights are regulated in Section 10 (5) KWG .

Switzerland

In Swiss law, the participation certificate is regulated in Art. 657 Code of Obligations. According to the law, this is a profit-sharing right that can only be granted to people who are already associated with the company, such as shareholders, creditors or employees. The participation certificates must be anchored in the statutes and may not have a nominal value. As a result, they may not be issued against a capital contribution. You can grant a claim to a portion of the balance sheet profit, a portion of the liquidation proceeds or the subscription to new shares, but not other rights. In particular, profit participation certificates cannot contain voting rights. The beneficiaries of the participation certificates form a community by law and can only waive their rights bindingly by majority vote, for example.

The profit certificate of German law corresponds in Swiss law rather the participation certificate .

literature

Individual evidence

  1. ^ Klaus Luttermann, Enterprise, Capital and Profit Participation Rights , 1998, p. 53 f.
  2. ^ Reichsgericht, judgment of December 3, 1888, Az .: IV 215/88, JW 1889, 47
  3. ↑ § 12 sentence 1 Gold Balance Regulation of March 28, 1924
  4. ↑ Art. 657 Law of Obligations