Bearer shares (English bearer shares) are securities which carry a fraction of the capital stock in joint stock companies or limited liability on a partnership limited by shares and are designed with regard to their transferability in bearer form.
The Act since 1978 a presumption in favor of one or other of share because § 23 para 3 No. 5 AktG requires a clear rule in the Articles of the corporation, whether the shares are issued in bearer, registered shares or registered shares. Until then, the bearer share was provided as the norm, because § 24 AktG aF assumed that they are bearer shares, unless the articles of the corporation determine otherwise. In Germany, the share of bearer shares outweighs all listed shares. This is also the case in Belgium, the Netherlands, Austria and Denmark. In the UK and in the U.S., however, the share name is preferred.
Unless contrary to shares or membership provisions, in the case of bearer shares, the provisions relating to the Notes may be applied by analogy (§ § 793 ff BGB), in particular § 805 and § 806 BGB. The rights and obligations of shareholders are so closely associated with the share certificate that the transfer of the certificate also means the transfer of all rights and obligations at the same time. The character as a bearer bond increases the marketability of bearer shares, because they can be transmitted informally by mere agreement and transfer to a new purchaser ( § § 929 ff BGB). This also applies to holders of shares advanced Gutglaubensschutz for bearer securities, which even then can be purchased in good faith if they were stolen from the owner, lost or otherwise lost after being ( § 935 para 2 BGB). For credit institutions such provisions are restricted ( § 367 HGB) apply.
Both master, and preference shares may be performed as bearer or ( restricted transferability ) registered shares. It also has a segmentation is possible, that is, that part of the common stock is listed as registered shares and a remaining part as bearer shares.
Rights and obligations of the shareholder
For all stocks, the stock corporation law membership of shareholders to the takeover (§ 29, § 23 para 2 No. 2 AktG) or subscription of shares is based ( § 185 AktG) and arises with the constitutively acting registration of joint-stock company in the commercial register. Bearer shares securitize as all shares membership in a corporation as the sum of individual rights and obligations of the shareholder, in particular
- Voting rights ( § 12, § 134 AktG)
- Dividend claim, unless the General Meeting has adopted a distribution decision ( § 58 paragraph 4, § 174 AktG)
- Obligation to deposit service (§ 54 AktG)
- Information rights in the general meeting ( § 131 AktG).
The invitation to the General Meeting shall be passed for bearer shares from the custodians to the shareholders, voting rights may be exercised by the application and presentation of the certificate of deposit of the Custodian, while the entry in the register is required for registered shares. For proof of ownership held in deposits, bearer shares, a certificate of deposit in accordance with § 123 paragraph 3 sentence 2 AktG, is confirmed in the credit institution that designated by name and address shareholders have held the shares for at least three months before the application, and which shall not be older than seven days at the time of submission to the Company. This certificate of deposit must be received no later than the third business day prior to the Annual General Meeting of the Company.
Bearer shares not only enable a faster portability, but also facilitate the management at the corporation. The frequently changing owner is the company is not aware, as she has to keep even a share register for name and registered shares. Here, only one, a shareholder who is registered as such in the share register ( § 67 para 2 AktG). The bearer shares their respective holder is the shareholder.
This high marketability is an essential requirement for exchange trading, which requires a high fungibility of the securities traded. Securities that meet the requirement of listing are considered marketable. According to § 5 para 1 Listing Regulation, the free transferability of the securities is required for admission to the official list. The "Conditions for Transactions on the Frankfurt Stock Exchange on 12 October 2009" go on the availability of shares to bearer shares not explicitly, but instead regulate in particular the availability of registered shares and generally go by the availability of bearer shares.
The first known bearer share was introduced in Germany in 1688 by the Brandenburg- American Company. In Germany, the registered share dominated until well into the first half of the 19th century, only railway shares were configured as bearer shares. The bearer share was indeed intended as a rule, however, subject to approval due to the Prussian Securities Act of 1833, but due to a ministerial decree that approval should be granted only in exceptional cases.