Registered share
A registered share ( English registered share ) or a registered share ( Swiss Standard German ) - unlike suggests as its name - one of the born to order, belonging securities be or without securitization have an alternative inventory.
Situation in Germany
General
The majority of all shares in circulation in Germany are legally structured as bearer shares . As with all bearer papers, the rights arising from this can be transferred by simply agreeing and handing over the certificate ( §§ 929 ff. BGB ). This increases their circulability and marketability, which are particularly essential for stock exchange trading. When trading on the stock exchange , it is important that the securities traded there can be transferred without any special formalities, i.e. that they are fungible . This fungibility ultimately means that the stock corporations do not know by name of the group of - often changing - owners of their shares. The bearer share has no longer been legally envisaged as a normal case since 1978, because Section 23 (3) No. 5 AktG refrains from assuming in favor of one or the other type of share. This 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.
Since 1861, however, the legislature in Germany has created the option of removing this anonymity for shareholders as an alternative to shares. This has been legally implemented by choosing a different form of transfer, namely as (born) order paper for registered shares or as (technical) recta paper for registered shares with restricted transferability.
Legal position
In the case of registered shares, only those who are entered as such in the share register are deemed to be shareholders ( Section 67 (2) AktG). Only the shareholder entered and thus registered in the share register is therefore considered by the company as a shareholder (entitled to vote and dividend). Credit institutions involved in stock exchange transactions are obliged to provide the stock corporation with the information required for the share register ( Section 67 (4) AktG).
The Law on Registered Shares and the Facilitation of the Exercise of Voting Rights (NaStraG), which came into force on January 25, 2001 , has fundamentally modernized the provisions of stock corporation law governing registered shares and also relaxes the formal requirements applicable to the general meeting . In addition to the renaming of the share register to the share register, the shareholder data to be entered there has been reorganized ( Section 67 (1) AktG). The secure identification of the shareholder is no longer guaranteed by specifying the occupation, but instead by entering the date of birth, while specifying the place of residence is no longer mandatory. It is sufficient to enter an address (of any kind) with which a direct information channel to the shareholder is to be guaranteed. According to Section 67 (6) AktG, information about personal data can only be requested. If the registered share is transferred, the submission of the shares as proof of the transfer is no longer required - unlike in accordance with Section 68 (3) sentence 2 AktG old version. This facilitates electronic register management and updating.
In addition, the company law provisions on registered and bearer shares have been largely aligned. With regard to participation in the Annual General Meeting and the exercise of voting rights, the registration deadline for holders of registered shares and the deadline for depositing bearer shares are now seven days ( Section 123 (3) sentence 1, (4) AktG). In addition, voting rights can now also be exercised for registered shares by credit institutions ( Section 135 (1) AktG), and a proxy “for whom it concerns” is also possible (Section 135 (4) sentence 2 AktG). Finally, the previous section 135 (4) sentence 3 AktG was deleted without replacement, so that in future it is no longer mandatory to present and keep the power of attorney. Rather, in accordance with Section 135 (4) sentence 3 AktG, both bearer and registered shares are only required to comply with the respective requirements of the Articles of Association as proof of voting rights. This applies equally to an appearance on behalf of the shareholder and to a representative for the person concerned.
There is no longer any possibility of hiding behind trustees or credit institutions. Registered shareholders must disclose their identity by entering it in the share register. An intentional or grossly negligent violation of the notification obligations (concealment) will be punished with a six-month withdrawal of voting rights after the entry has been corrected.
The law provides an essential reason for the issue of registered shares: Shares that are not fully paid in may only be issued as registered shares ( Section 10 (2) AktG). In this way, the company should be able to check whether the shareholder entered in the share register has sufficient creditworthiness for the remainder of the payment obligation. When the company is founded, registered shares also offer the option of paying in only part of the share capital or of making contributions in kind over a longer period of time.
species
The law provides for two forms, namely the simple registered share and the special form of the registered share with restricted transferability . Both belong to the born order papers; In practice, the registered share with restricted transferability is converted into technical recta by the issuer. The law generally allows a stock corporation to choose between bearer and registered shares. Exceptions apply to capital investment companies and companies in which, by law, the group of shareholders must be influenced by issuing registered shares with restricted transferability. These include auditing and auditing companies ( Section 28 (5), Section 130 (2 ) WPO ) or tax consulting companies ( Section 50 (2 ) StBerG ), in which only the relevant professionals can be shareholders.
Simple registered share
The standard case is the registered share, which requires an entry with the name, date of birth, address and the number of shares held in the share register so that the holder can assert all rights from the share ( Section 67 (2) AktG). Since it is one of the born order papers, the law assumes the existence of a positive order clause . The registered share is transferable by agreement, endorsement and handover because Section 68 (1) AktG refers to the provisions of Art. 12 , Art. 13 and Art. 16 WG .
Registered share with restricted transferability
The restricted transfer registered share ( English registered share with restricted transferability ; Latin vinculum : band, ankle) is a special type of registered share represents a registered share requires for its transmission to the approval of the issuing corporation. ( § 68 para 2 AktG.). This further restricts the already low marketability of registered shares. Since the company may refuse to consent to the transfer, the shareholder entered in the share register is initially only entitled to assert the rights resulting from the share.
Registered shares with restricted transferability are also materially legally born order papers and not recta papers and can therefore be transferred by endorsement. The required consent to the transfer only restricts the transport function of the endorsement, but does not change its character as an order document. In practice, however, registered shares with restricted transferability are usually transferred by way of blank assignment. The issuer's form practice generally provides for assignment. The decisive factor here is that the necessary consent to the transfer is given implicitly with the registration in the share register and that the blank assignment provides the more suitable documents. In addition, the declaration of assignment completed by the buyer is a sufficient indication of the transfer of rights to be evidenced in accordance with Section 68 (3) sentence 2 AktG. This means that registered shares with restricted transferability become technical securities.
Registered shares are restricted if unwanted shareholders (such as competitors or people outside the family) are to be excluded from purchasing the shares from the outset. If the issuer does not agree to the transfer of ownership, the new acquirer does not receive any voting rights. When granting global approval, the company does not have to approve each individual share purchase. Registered shares with restricted transferability are issued in particular by insurance companies or ancillary service stock corporations . Particularly in security-relevant sectors, such as the armaments industry and aviation, companies are sometimes forced by law to issue registered shares with restricted transferability. Deutsche Lufthansa AG has also been issuing registered shares with restricted transferability since September 1997 in order to provide the proof required in air transport agreements and EU directives that the majority of Lufthansa shares are in German hands. The regional value public companies use registered shares.
Transferability and marketability
Order or even rectal papers have a major hurdle that significantly restricts their marketability, namely the endorsement or assignment as a form of transfer prescribed by securities law. In Section 68 (3) AktG, the stock corporation is obliged to check that the chain of endorsements is complete, but not the authenticity of the signatures.
A blank endorsement is required in accordance with Section 68 (1) AktG i. V. m. Art. 12 para. 3 and Art. 13 para. 2 WG and makes the registered share a “technical” bearer paper that can subsequently be transferred by simple agreement and handover. In order to enable the delivery of registered shares to stock exchanges , the stock exchange regulations prescribe the affixing of a blank endorsement for registered shares or a blank assignment for registered shares with restricted transferability. Thereafter, registered shares can be delivered if the last transfer - and only this - is expressed by a blank endorsement or if - in the case of registered shares with restricted transferability - a blank assignment has been made or blank transfer requests from the seller are attached to the shares. In the case of further transfers, renewed endorsement or assignment is not required, so that the papers are similar to bearer shares in trade and can be placed in collective safe custody. In Germany, Clearstream Banking AG (formerly Deutsche Börse Clearing) operates the Cascade-RS system for processing registered shares , which also enables the necessary information to update the connected share registers on the trading day by electronic means.
The custodian banks transmit the trading data electronically to the share register via the securities trading system of Deutsche Börse AG ( Cascade-RS ). Name, address, nationality and the number of shares are reported. The banks will also inform you electronically of any address changes. In the case of blank endorsements, entry in the share register is initially not required, but is necessary when exercising voting and property rights.
It is not the custodian bank that sends the invitation and agenda to the annual general meeting, but the stock corporation itself. The basis for this is the entries in the share register it maintains. Without the corresponding registration, someone can own the shares, but has no voting rights and dividend entitlement.
Reasons for issuing registered shares
transparency
Since the late 1990s, numerous large corporations have switched their share certificates from bearer shares to registered shares. Thanks to the share register, this gives the issuer more transparency about its shareholder structure and facilitates contact between the company and shareholders (“ investor relations ”) and access to the international capital markets. In the case of bearer shares, this data is only available if a notification of voting rights has to be made. Since a sharply changing shareholder structure, for example due to increased interest from financial sponsors (active financial investors), can be identified much earlier and more easily by the investor relations departments, registered shares have recently become increasingly important. The number of all stock corporations with registered shares in Germany in 2001 was 62. At the end of 2006, 12 of the 30 shares traded in the DAX were registered shares.
Disadvantages for issuers and investors when issuing registered shares are the expenses incurred in setting up and updating the share register. In addition, it is assumed that active or wealthy private investors in particular who want to remain anonymous are deterred from buying these company shares by registered shares.
internationalization
Registered shares have established themselves as the international standard, as this is the usual form of shares and a. in USA and UK.
In particular, a listing on the New York Stock Exchange requires registered shares; in order to gain access to this market, foreign companies issue so-called American Depositary Receipts (ADR), which, however, can generate additional costs and possibly also a reduction in liquidity. As an alternative to ADRs, some companies have switched their shares from bearer to registered shares and can then trade in New York as so-called global registered shares .
Situation in Switzerland
Registered shares also exist in Switzerland under the Swiss Code of Obligations . There, too, the shareholders are entered in the share register.
Situation in Austria
In Austria, registered shares are required for all stock corporations that are not listed (§ 9 and 10 of the Stock Corporation Act ).
See also
literature
- Rüdiger von Rosen , Werner G. Seifert (Ed.): The registered share (= writings on the capital market. Volume 3). Deutsches Aktieninstitut et al., Frankfurt am Main 2000, ISBN 3-934579-02-7 .
Individual evidence
- ↑ hence the French name for the stock corporation as "Société Anonyme" (SA) or in the Netherlands as " Naamloze vennootschap " (NV)
- ↑ More protection against "locusts". Bundestag passes Risk Limitation Act. ( Memento from September 8, 2008 in the Internet Archive )
- ↑ Florian Becker, Tobias Bürgers, Torsten Körber: Heidelberg Commentary on the Stock Corporation Act. CF Müller, Heidelberg 2008, p. 72
- ↑ Veronika Schinzler: The partially paid-in registered share as a financing instrument of the insurance industry. (= Publications by the Institute for Insurance Science at the University of Mannheim, 62) VVW, Karlsruhe 1999, p. 31
- ↑ Veronika Schinzler: The partially paid-in registered share as a financing instrument of the insurance industry. (= Publications by the Institute for Insurance Science at the University of Mannheim, 62) VVW, Karlsruhe 1999, p. 25
- ↑ the Aviation Proof of Security Act (LuftNaSiG) stipulates that listed German aviation companies must comply with certain requirements with regard to ownership and control in order to maintain their aviation rights
- ↑ According to Regulation (EC) No. 1008/2008, an air carrier must be owned and controlled by EU member states or their nationals directly or via a majority stake in order to maintain and acquire an operating license for air traffic
- ^ Conditions for transactions on the Frankfurt Stock Exchange from April 15, 2009
- ↑ Registered shares increasingly popular . Handelsblatt dated April 22, 2001
- ↑ Udo Terstege: Bearer or registered shares? - On the renaissance of the registered share. ( Memento of February 19, 2009 in the Internet Archive ) p. 6
- ↑ Swiss Code of Obligations
- ↑ Company Law Amendment Act 2011 (1252 dB), government bill. Austrian Parliament, accessed on November 8, 2015 .
