Markets
Austria: no simplified route out of subscription rights
Austria permits the instrument and prices the procedure into it. There is no Austrian counterpart to Germany's simplified exclusion of subscription rights, so every exclusion needs a three-quarters vote in the capital increase resolution itself, announced in the agenda, with a written management board report justifying the proposed issue price. A price that has not been fixed is hard to justify.
Key takeaways
- No safe harbour. Section 153 AktG has no simplified exclusion for a cash issue below a percentage of share capital, and no shortcut for a price close to the exchange price. Both exist next door; neither exists here.
- Three quarters, in the resolution itself. Section 153(3): the Bezugsrecht may be excluded wholly or partly only in the resolution increasing the share capital, on a majority of at least three quarters of the share capital represented at the vote.
- The price is justified in writing, in advance. Section 153(4): the exclusion must be expressly announced in the agenda, and the Vorstand must lay a written report before the Hauptversammlung in which the proposed issue price is justified.
- Two ceilings at half the share capital. Section 159(4) for bedingtes Kapital, section 169(3) for genehmigtes Kapital — the latter for at most five years, with new shares issued only on Aufsichtsrat consent.
The provision Austria does not have
Anyone arriving from Frankfurt expects a simplified exclusion route: a cash increase up to a set share of capital, priced close to the market, subscription rights disapplied on a light procedure. That route is why a German board can place stock quickly. Austria never adopted it. Section 153 of the Aktiengesetz sets out the subscription right and, in subsection (3), one way to remove it.
The consequence is structural rather than arithmetical. Austria imposes no minimum price, no reference period and no maximum discount. It imposes an approval architecture that assumes the price is known before the meeting votes, and a floating conversion price is precisely a price that is not. That is what makes this a constrained market.
What section 153 actually requires
Subsection (1) gives each shareholder, on request, a share of the new shares corresponding to their holding, with a subscription period of at least two weeks. Subsection (3) provides that the subscription right may be excluded wholly or partly only in the resolution increasing the share capital, and that the resolution then needs a majority of at least three quarters of the share capital represented at the vote. The articles may raise that bar, not lower it.
Subsection (4) is the operative sentence for a financing. The resolution may be passed only if the exclusion was expressly announced in the agenda, and the management board must lay before the meeting a written report on the reason for it, in which the proposed issue price is to be justified. Two things follow: the transaction is public before it is priced, and the justification has to be drafted around a mechanism rather than a figure.
| Step | Austrian Aktiengesetz | What a facility needs |
|---|---|---|
| Who may exclude subscription rights | The general meeting, in the increase resolution | Authority settled once, covering every tranche |
| Majority and notice | Three quarters of capital represented; agenda notice | Speed and confidentiality before pricing |
| The price | Written board report justifying the issue price | A formula the report has to defend in advance |
| Capital headroom | Conditional and authorised capital each capped at half | The whole facility reserved up front |
| Issuing the shares | Supervisory board consent under section 169(3) | A second internal gate at every drawdown |
| Structural comparison only. Not an offer, a quote, or a rate card. | ||
Conditional and authorised capital, and their ceilings
Convertibles live in bedingtes Kapital. Section 159(2) number 1 permits a conditional increase to grant exchange or subscription rights to creditors of Wandelschuldverschreibungen, convertible bonds. Section 159(4) caps conditional capital at half the share capital existing at the date of the resolution, falling to 10% for employee stock options, and section 159(5) caps the shares obtainable under all outstanding options at 20% of share capital.
The alternative chassis is genehmigtes Kapital. Section 169 lets the articles authorise the management board, for at most five years and on a three-quarters majority, to increase the capital by issuing new shares against contributions. Section 169(3) caps it at half the share capital existing at the authorisation and requires Aufsichtsrat consent before new shares are issued. Between two ceilings, a five-year clock, a supervisory board gate and no simplified exclusion, a rolling facility carries real friction here.
General information, not legal advice. The absence of an Austrian counterpart to the German simplified exclusion is stated from the face of section 153, not from any Austrian authority ruling the point, and no Austrian regulator publication on dilutive convertible financing was located. Take advice from qualified Austrian counsel.
Delivery and resale on the Wiener Börse
Once the corporate steps are done the back end is straightforward. Shares arising on conversion are ordinary shares admitted to trading on the Wiener Börse, in the Amtlicher Handel segments or the exchange-regulated direct market, and there is no Austrian holding period. The gate is the EU prospectus regime: admission of securities fungible with an existing line is exempt below 30% of the number already admitted over 12 months, raised from 20% by Regulation (EU) 2024/2809.
The instructive comparisons are close by. Germany shares the statute family and has the safe harbour Austria lacks; Switzerland reaches a similar answer by a different route, an undefined appropriate conditions test; the Czech Republic is the other Central European market where the question is whether pre-emption can be lifted at all. On instruments see convertible notes for listed issuers and private placements by a public company. An Austrian issuer with US holders should read Rule 144 and restricted securities. Send the last capital resolution.
Primary sources
- RIS — Aktiengesetz, sections 153, 159 and 169
- Prospectus Regulation, consolidated — Article 1(5) 30% exemption
- Directive (EU) 2017/1132 — Article 47, the par floor
- Wiener Börse — legal framework
Financing an Austrian listed issuer: frequently asked questions
Does Austria have an equivalent of the German simplified exclusion?
No. Section 153 of the Austrian Aktiengesetz contains no simplified route letting a cash issue below a stated percentage of share capital exclude subscription rights on a lighter procedure. Every exclusion runs through subsection (3): a resolution of the general meeting increasing the share capital, carried by at least three quarters of the share capital represented at the vote.
What has to be in the management board report?
Section 153(4) requires the exclusion to be expressly announced in the agenda, and the Vorstand to lay before the Hauptversammlung a written report on the reason for the partial or complete exclusion of the subscription right, in which the proposed issue price is justified. That is the sentence a market-referenced conversion price has to answer, because at the date of the report the price is not yet known.
How much conditional or authorised capital can an Austrian issuer have?
Section 159(4) caps conditional capital at half the share capital existing at the date of the resolution, dropping to 10% where the purpose is employee stock options, and section 159(5) caps the shares obtainable under all outstanding options at 20% of share capital. Section 169(3) caps authorised capital at half the share capital existing at the date of the authorisation, and new shares may be issued only with the consent of the supervisory board.
When can an investor sell shares issued on conversion?
There is no Austrian holding period. Shares arising on conversion are ordinary shares once admitted to trading on the Wiener Börse. The gating item is the prospectus: admission of securities fungible with a listed line is exempt below 30% of the number already admitted over 12 months, a threshold raised from 20% by Regulation (EU) 2024/2809.
If this is about a live situation
Austria suits an issuer that can put a justified issue price in front of a three-quarters vote, not one discovered later at each drawdown. If a general meeting is already in the diary, the instruments that price once are the relevant ones.