Topic Information obligations for issuers Obligation to publish the total number of voting rights and transmission to the Company Register (section 41 of the WpHG)
Article from Issuer Guidelines published by the Federal Financial Supervisoriy Authority
Timing and manner of publication
Under section 41 (1) of the WpHG, the issuer must publish any change in the total number of voting rights without undue delay, at the latest within two trading days. Waiting for the announcement in the commercial register or for notification by the commercial register is not permitted. Only in the case of a change in the total number of voting rights following the issuance of new shares out of a contingent capital increase (e.g. when stock options are settled from contingent capital), the issuer may, under section 41 (2) of the WpHG, publish the actual number of issued voting rights at the end of the calendar month, unless the issuer is required to make a publication under section 41 (1) of the WpHG following the change of the total number of voting rights during the ongoing month. In this case the publication of the issuance of new shares must be made in connection with the publication of the change in the total number of voting rights.
The end of the calendar month is generally considered to be the last calendar day of the month. If the last calendar day of the month is a Saturday, Sunday or national public holiday in Germany, BaFin accepts publication on the last trading day within the meaning of section 47 of the WpHG before the Saturday, Sunday or national public holiday as satisfying the publication obligation.
In the event of a capital reduction resulting from the redemption of shares (sections 237 et seq. of the AktG), the share capital is reduced when the resolution is registered with the commercial register or, if this is followed by the effective redemption of the shares, at the time when the shares are redeemed (section 238 sentence 1 of the AktG). If redemption is decisive, the management board must take action to eliminate the shares (section 238 sentence 3 of the AktG).
Special case: Initial admission of the domestic issuer’s shares
Usually, the initial admission of an issuer’s shares (IPO) to an organised market is preceded by a capital increase.
Example
The manner and language of the publication are governed by the general requirements (IV.6; I.3.2.1.3). In addition to publication, the information must also be transmitted to the Company Register for storage and BaFin must be notified of the publication (IV.6.4, I.3.2.3).
Content
Due to an amendment following the Financing of the Future Act (Zukunftsfinanzierungsgesetz), the number of multiple voting rights is to be diclosed as well; please refer to BaFin`s FAQ-list.
Publications under section 41 of the WpHG must contain the following disclosures:
- the total number of voting rights and
- in the case of other capitalisation measures within the meaning of section 41 (1) of the WpHG, the effective date.
If new shares out of a contingent capital increase are issued (section 41 (2) of the WpHG), it is sufficient to disclose the total number at the end of the month (“balance at”) in which the new shares were issued.
Shares held by the domestic issuer (“treasury shares”) must not be deducted from the total number of voting rights. This is because any change in the holding of own (treasury) shares would trigger a publication obligation under section 41 of the WpHG. However, that would render a separate publication obligation for treasury shares (section 40 (1) sentence 2 of the WpHG) superfluous.
