Luxembourg Public limited liability companies (SA) and corporate partnerships limited by shares can issue bearer shares. There are strict regulations regarding holding and keeping bearer shares. As a result of these regulations, bearer shares must be held by a professional depositary (as for example a Luxembourg CPA)
IMMOBILIZATION OF BEARER SHARES
Bearer shares must be deposited with a professional depositary located in Luxembourg which can be one of the following:
- a bank or financial institution (professionals in the financial sector);
- a notary;
- a lawyer;
- a Luxembourg Certified Public Accountant (CPA).
The depositary is selected by the company and each shareholder must deposit their bearer shares with that depositary.
The identity of the depositary must be available to the public through Luxembourg's Trade Register.
ROLE OF THE DEPOSITARY OF BEARER SHARES
A depositary must hold bearer securities.
The depositary's role is to hold the bearer shares on behalf of shareholders.
The depositary does not have the right to relinquish the deposited shares to any party other than another certified Luxembourg depositary that is appointed by the company. This also implies that the depositary does not have the right to return bearer shares directly to the shareholders.
The depositary of bearer shares must issue a certificate of deposit to each shareholder (to allow the shareholder owning bearer shares to participate in General Shareholders Meetings).
BEARER SHARES REGISTER
The custodian must have a bearer shares register indicating the name of each shareholder, the number of shares held and any transfers.
The transfer of bearer shares is enforceable by registering the transfer in the bearer shares register.
Bearer shares cannot confer rights (namely, the right to participate or vote in the General Shareholders Meeting and to receive dividends) unless these bearer shares are deposited through a depositary. Bearer shares which are not deposited do not confer any rights.
NEW LAW CONCERNING IMMOBILIZATION OF BEARER SECURITIES
The law1 concerning the immobilization of bearer securities came into effect on 17th August 2014.
Before this law came into effect, bearer shares could be owned and held without any formalities and each shareholder was free to hold the bearer shares as he or she saw fit (at home for example) and bearer shares could be transferred in a simple manner.
With the enactment of the law on the immobilization of bearer shares, existing companies must come into compliance with this law:
- companies must designate a custodian within 6 months of August 2014;
- although shareholders have 18 months as of August 2014 to deposit their shares with the approved depositary, voting and dividend rights for shares which are not deposited within 6 months of August 2014 are automatically suspended.
Bearer shares which are not deposited within 18 months must be cancelled through a corresponding reduction in share capital.
SPECIAL OBLIGATIONS FOR SPFs
SPF companies must prove their compliance with the law on the immobilization of bearer shares2 to the Luxembourg Trade Register before 30th June 2017. Companies that are not SPFs (SOPARFIs, Ordinary Companies) are not affected by that obligation.
CHRONOLOGY
17th August 2014: the law on the immobilization of bearer shares comes into effect.
17th February 2015: each company must have appointed a depositary (for example a Luxembourg CPA) and published this information in Luxembourg's RCS.
Shareholders have 12 months to deposit their bearer shares with the depositary, and their bearer shares are suspended until the deposit is carried out (which should be finalized before 17th February 2016).
As from 18th February 2016: Bearer shares which have not yet been deposited must be cancelled and the share capital of the company in question must be reduced by the corresponding amount.
1 Law of July 29, 2014 related to the immobilization of bearer shares and units and to the maintenance of a register of registered and bearer shares. Memorial A number 161 of August 14, 2014.
2 Article 22 of the law of December 23, 2016 related to the enactment of the fiscal reform. Memorial A : 274 of December 27, 2016.
