Overview

Under section 50 (1) sentence 1 no. 1 1st half-sentence of the WpHG, domestic issuers are required to publish without undue delay any modification of the rights attached to securities admitted to trading and to notify this publication to BaFin. Special requirements arise under (a) in the case of shares admitted to trading for rights attached to derivative securities issued by the issuer itself, provided that they grant conversion or acquisition rights in respect of the issuer’s shares admitted to trading, and under (b) in the case of securities admitted to trading other than shares, for modifications to the terms or conditions of these securities, to the extent that the rights attached to those securities are indirectly affected. Point (c) was deleted without replacement by the TRLÄndRL-UmsG.

Section 50 (1) sentence 1 no. 1 1st half-sentence of the WpHG – Catch-all provision

Section 50 (1) sentence 1 no. 1 1st half-sentence of the WpHG corresponds to the wording of section 66 of the BörsZulVO (old version), which was a catch-all provision for information relating to securities whose publication is not prescribed elsewhere. The publication obligations were not extended by the transposition of the Transparency Directive. As a result, in cases where a publication obligation is established by other requirements, there is no additional publication obligation under section 50 (1) sentence 1 no. 1 1st half-sentence of the WpHG.

Under section 50 (1) no. 1 1st half-sentence of the WpHG, only those modifications that directly impact the rights attached to the securities are subject to the publication obligation.

Individual cases:

The conclusion of a control and profit and loss transfer agreement does not constitute any modification of the rights attached to securities admitted to trading that is subject to the publication obligation under section 50 of the WpHG. There is no direct impact in this case, in particular because the dividend entitlement continues to exist at a formal level. Legal consequences that may arise under the AktG do not, as a rule, lead to a publication requirement under section 50 (1) sentence 1 1st half-sentence of the WpHG, with the result that neither reverse stock split or squeeze-out resolutions are subject to a general publication obligation.

Nor does a publication obligation exist in the case of a resolution within the meaning of section 49 (3) no. 1 a) of the WpHG, since there is no direct modification of the rights attached to the securities.

Equally, a change in the remuneration of the supervisory board/management board does not lead to a publication obligation section 50 (1) sentence 1 no. 1 1st half-sentence of the WpHG, as in this case, too, there is no direct link to the rights of holders of the securities. Such a link might only exist if the change in remuneration was highly significant for the issuer’s economic position. In such cases, however, there would be an obligation to publish an ad hoc disclosure, thus leaving no room for any obligation for a publication under section 50 (1) no. 1 of the WpHG.

Section 50 (1) sentence 1 no. 1 a) of the WpHG

This requirement contains a publication obligation for domestic issuers of shares admitted to trading in respect of a change in rights attached to derivative securities issued by the issuer itself, to the extent that the securities convey conversion or acquisition rights in respect of the issuer’s shares admitted to trading.

For example, in the case of convertible bonds or bonds with warrants relating to shares admitted to trading of an issuer whose registered office is in Germany, there is a publication obligation under section 50 (1) sentence 1 no. 1 a) of the WpHG in the case of the retrospectively valid extension of the conversion period in the sense of a modification of contract.

Section 50 (1) sentence 1 no. 1 b) of the WpHG

The publication obligation of section 50 (1) sentence 1 no. 1 b) of the WpHG only covers changes in the terms of the securities admitted or the conditions attached thereto. Interest rates are listed as one example in this context. Since section 50 (1) no. 1 b) of the WpHG requires publication in respect of changes in terms, section 50 (1) sentence 1 no. 1 b) of the WpHG only prescribes publication relating to interest rates if these have been amended retrospectively, for example in the course of a general meeting of debt securities holders. In the other cases, the publication obligation under section 49 (2) no. 2 of the WpHG applies (II.3.5).

The “securities” referred to in this provision must be securities admitted to trading. This follows from the wording of Article 16(2) of the Transparency Directive. The publication obligation under section 50 (1) sentence 1 no. 1 b) of the WpHG applies to modifications to the conditions of the securities that require the consent of the debt securities holders under general principles of civil law. As a general rule, these include a change in the obligor, for example.

If bond conditions are modified, for example a subsequent modification of the day count convention subject to the consent of the meeting of debt security holders, this also falls under the publication obligation in section 50 (1) sentence 1 no. 1 b) of the WpHG. Section 50 (1) sentence 1 no. 2 of the WpHG (old version) was deleted without replacement by the TRLÄndRL-UmsG.