Bearer ( English bearer shares ) are securities that a fraction of the capital stock to stock companies or at the unincorporated a Kommanditgesellschaft auf Aktien evidencing and in view of its transferability as bearer are configured.
The demonstrably first bearer share was introduced in Germany in 1688 by the Brandenburg-African Compagnie . In Germany, the registered share dominated until the first half of the 19th century, only railway shares were designed as bearer shares. The bearer share was intended as a rule, but was subject to approval due to the Prussian Stock Corporation Act of 1833, but due to a ministerial decree, this approval should only be granted as an exception.
Since 1978, the law has refrained from making a presumption in favor of one or the other type of share , because (3) No. 5 AktG requires a clear regulation in the articles of association of the stock corporation as to whether the shares are issued as bearer shares , registered shares or registered shares with restricted transferability . Until then, the bearer share was envisaged as the normal case, because Section 24 of the AktG (old version) assumed that the shares were bearer shares unless the articles of association of the stock corporation stipulate otherwise. In Germany, bearer shares predominate in all listed shares.
Unless otherwise stipulated by stock corporation or membership law, the provisions on bearer bonds apply analogously to bearer shares (§ ff. BGB ), in particular and BGB. The rights and obligations of the shareholder are so closely linked to the share certificate that the transfer of the certificate also means the transfer of all rights and obligations. The character of a bearer paper increases the marketability of bearer shares because they can be transferred informally to a new purchaser by simple agreement and handover (§ ff. BGB). The extended protection of good faith also applies to bearer shares for bearer securities, which can still be acquired in good faith if they have been stolen from the owner, lost or otherwise lost ( (2) BGB). However , these regulations only apply to a limited credit institutions ( German Commercial Code ).
Both ordinary and preference shares can be issued as bearer or (restricted) registered shares. Segmentation is also possible here, i. This means that some of the ordinary shares are held as registered shares with restricted transferability and the remainder as bearer shares.
Shareholder Rights and Obligations
All shares under company law is based membership of the shareholder on the acquisition ( , para. 2 no. 2 AktG) or drawings of shares ( AktG) and established with the constitutively acting registration of joint stock company into the commercial register . Like all shares, bearer shares certify membership in a stock corporation as the sum of individual rights and obligations of the shareholder, in particular
- Voting rights ( , AktG),
- Dividend entitlement , if the general meeting has passed a resolution on distribution ( (4), AktG)
- Obligation to make contributions ( AktG) and
- Right to information in the general meeting ( AktG).
In the case of bearer shares, the invitation to the Annual General Meeting is passed on to the shareholders by the custodian banks . Voting rights can be exercised by registering and presenting the depositary receipt from the custodian bank, whereas registered shares must be entered in the share register . In the case of bearer shares held in custody, it is sufficient to provide evidence of shareholder status in accordance with Paragraph 3 Clause 2 AktG, in which the bank confirms that the shareholders named by name and address have been holders of the shares for at least three months prior to application, and that the must not be older than seven days at the time of submission to the company. This deposit confirmation must be received by the company no later than the third working day before the general meeting.
Bearer shares not only enable faster transferability, but also facilitate management at the stock corporation. The company is not aware of the frequently changing owner, while it even has to keep a share register for registered shares and registered shares with restricted transferability. Only those who are entered as such in the share register are deemed to be shareholders ((2) AktG). In the case of bearer shares, the respective holder is the shareholder.
This high marketability is an essential prerequisite for stock exchange trading , which requires high fungibility of the securities traded. Securities that meet the requirements for listing on the stock exchange are considered marketable. According to (1) of the Stock Exchange Admission Ordinance , the free tradability of the securities is a prerequisite for official listing on the stock exchange. The “Conditions for Transactions on the Frankfurt Stock Exchange of October 12, 2009” do not explicitly refer to bearer shares when it comes to the availability of shares, but rather regulate the availability of registered shares and generally assume the availability of bearer shares.
- Veronika Schintzler, The partially paid-in registered share as a financing instrument for the insurance industry , 1999, p. 3.
- Franz Johannes von Rottenburg, Bearer Shares and Registered Shares in German and American Law , 1967, p. 7.
- Franz Johannes von Rottenburg, Bearer Shares and Registered Shares in German and American Law , 1967, footnote 22.
- Lutz Sedatis, Introduction to Securities Law , 1988, p. 186.
- Allocation of the ordinary shares of Jungheinrich AG ( Memento of the original dated December 4, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- Announcement of the new version of the Ordinance on Accounting for Credit Institutions and Financial Services Institutions (RechKredV) dated December 11, 1998, Section 7, Paragraph 2 ( Memento of the original dated August 6, 2010 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- Conditions for transactions on the Frankfurt Stock Exchange from April 14, 2014 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- Harm Peter Westermann / Klaus Mock, Festschrift for Gerhard Bezzenberger , 2000, p. 149.