Representative of minority shareholders. Protecting the rights of minority shareholders in JSCs (nuances). Etymology and analysis of this concept

A minority shareholder is a shareholder of a company with a small number of shares.

Minority shareholder: rights and their protection, buyback of shares, consolidation and splitting of shares, TNK BP and Rosneft

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Minority shareholder is, definition

The minority shareholder is shareholder of a company with a small number of shares. Usually, minority shareholders are those who have less than a half of the shareholding and, in fact, his opinion does not have decisive actions, they have the right to receive dividends, have complete information about the company, and take part in meetings.

The minority shareholder is shareholder of the company (natural or entity), who has an insignificant shareholding in the company, which does not allow him to directly participate in its management. A small share of shares in this case means that their number is less than half. This package is also called "non-controlling".

A minority shareholder (minority shareholder) is shareholder of the company (individual or legal entity), the size of the block of shares of which does not allow him to directly participate in the management of the company (for example, by forming a board of directors). Such a block of shares is called "non-controlling".

The minority shareholder is shareholder of the company, whose shareholding is insignificant, in order to carry out the decision in their own interests. Such a shareholder can be either one person or the whole company. A minor share of shares formally means less than half of the shares. Principal decisions - decisions related to the choice of the board of directors, change.

A shareholder of a company (individual or legal entity), whose shareholding size does not allow him to directly exercise his right to participate in the management of the company (for example, by forming a board of directors).

The minority shareholder is minority shareholder, minority shareholder (a shareholder belonging to a group of shareholders who owns a minority of votes in a joint-stock company).

The minority shareholder is such a person who has a small share of a block of shares in an organization, enterprise, which does not allow him to be on the board of directors and directly manage the company itself. It is possible to receive dividends and at the same time not suffer severe damage.

Minority shareholder is individual or legal, which has a minimum of rights to other shareholders. But in any case, the legislation provides minority shareholders with sufficient rights to be able to influence the activities of the organization. Therefore, the owners large corporations more often they began to fear the so-called "corporate blackmail", when a minority shareholder can paralyze the company's activities with the help of a court.

Minority shareholder (minority shareholder) is a shareholder of a company who owns a small block of shares, which does not allow him to directly participate in the management of the company. The rights of minority shareholders are protected by the Law of the Russian Federation "On Joint Stock Companies".

A minority shareholder is a person on whom nothing depends in business (investments) - a shareholder who owns a non-controlling block of shares.

Rights of minority shareholders

Let's look at who a minority shareholder is and what rights he has in relation to the organizations he invests. The minority shareholder does not participate in direct control company and because of this, it is not so easy for him to fight the opinion of shareholders who have a controlling stake (CPS). In practice, minority shareholders have the following rights:

Receiving dividends;

Receiving part of the funds after the liquidation of the company;

Obtaining complete information about the company's activities;

The right to purchase shares of an additional issue to protect against the dilution of the package;

The right to demand that the majority shareholders buy back their assets at the market price if the minority shareholder voted against the major decisions of the shareholders.

But the same Law stipulates that after the main shareholder has 95% of all the company's assets, he has the right to force the minority shareholders to sell the remaining part of the shares.

Protecting the rights of minority shareholders

To protect the rights of minority shareholders, the laws of most countries provide for cumulative voting. Unlike traditional voting (one share - one vote - for one candidate for each seat), cumulative voting is based on the principle of cumulative selectivity. This principle means that the number of votes that one shareholder has (one vote - one share per number of board seats) can be cast for one candidate.

Since the minority shareholder does not participate in corporate governance, it is difficult for him to directly oppose the shareholders who own the controlling block of shares if they decide in any way to reduce the value of the shares of the minority shareholder (for example, by transferring assets to another company in which the minority shareholder does not have a stake, or by additional issue shares). Therefore, the laws of most countries provide for special rights for minority shareholders.

Russian legislation includes measures to protect minority shareholders:

Three-fourths of the votes of shareholders meeting participants are required for some corporate decisions (and the law allows for some of them to set a higher threshold in the charter), amendment of the charter, reorganization or liquidation of the company, determining the number and value of shares in the issue, acquisition by the company of its own outstanding shares (subject to 1-3, 5, 17 clause 1 article 48 of the Law of the Russian Federation "On Joint Stock Companies")

OK big deal with property, the value of which is more than 50 percent of the book value of the company's assets (ibid., paragraph 3 of article 79);

Decreasing the authorized capital of the company by reducing the par value of shares;

In the event of the acquisition of more than 30% (and then 50%, 75% and 95%) of the shares, the acquirer is obliged to offer the remaining shareholders to buy back their shares at a price not lower than the calculated one (ibid., paragraphs 1, 4, articles 84.2, 84.7) ;

A shareholder who owns at least 1% of the shares may file a lawsuit on behalf of the company against the management of the company, which caused losses to the company by its actions or inaction (ibid., para. 1, clause 5, article 71);

A shareholder holding at least 25% of the shares has the right to access documents accounting and minutes of board meetings (ibid., item 1, article 91).

Forced buyout of shares from minority shareholders

Legislation in many countries provides for the possibility of forced redemption by a major shareholder of the shares remaining from minority shareholders, after this shareholder buys almost all the shares (in Russia - 95% of the shares).

Forced repurchase of shares or squeeze-out (from the English squeeze out - “crowding out”, “squeezing out”) - the procedure for the mandatory sale of shares of minority shareholders (without their consent) to a major shareholder as the final stage of acquiring shares of a joint-stock company, provided for by the legislation of some countries, carried out through a voluntary or mandatory offer procedure, as a result of which such a major shareholder acquires a dominant stake (usually at least 90-98% of the authorized capital, depending on specific legislation).

A mirror image of the right to a squeeze-out is the right of minority shareholders to sell-out (the right to require a major shareholder to buy back the shares of minority shareholders, if they wish). It is granted to minority shareholders under the same conditions under which the right to a squeeze-out occurs for major shareholders.

From the point of view of economic feasibility, compulsory buyout of shares is considered as an opportunity to complete the process of consolidating the shares of a joint-stock company in the hands of one shareholder or several shareholders affiliated with each other on terms that are most beneficial for both the acquirer and minority shareholders. The logic here is that, on the one hand, in large joint-stock companies, a person seeking to acquire control over the company by consolidating its shares has practically no chance of buying back all the shares, even if a favorable price is offered (if only simply because the presence of "dead souls" in the registry). On the other hand, when a large block of shares is concentrated in the hands of one shareholder, the liquidity of such shares is sharply reduced, and it is practically impossible for minority shareholders to sell their shares at favorable price on the public market. Strict control over the forced buyout procedure and the pricing of the transaction allows the interests of both parties to be taken into account as much as possible.

Consolidation and split of shares for minority shareholders

In the process of consolidation, two or more shares of the company are converted into one new share of the same category (type). At the same time, the nominal value of each share increases by reducing the total number of shares, while the amount of the authorized capital remains unchanged; in the process of splitting one share of the company is converted into two or more shares of the company of the same category (type). At the same time, the nominal value of each share decreases due to an increase in the total number of shares, while the amount of the authorized capital also remains unchanged.

Consolidation and splitting of placed shares is carried out by decision of the general meeting of shareholders. The decision on issues of consolidation and splitting of shares is referred to the competence of the general meeting of shareholders. Such decisions are made by a majority vote of shareholders - owners of voting shares of the company participating in the meeting. The decision on the issue of consolidation or splitting of shares is taken by the general meeting of shareholders only at the proposal of the board of directors (supervisory board) of the company, unless otherwise provided by the charter of the company.

If during the consolidation of shares it is impossible for a shareholder to acquire a whole number of shares, parts of shares (fractional shares) are formed; a fractional share grants to the shareholder - its owner the rights granted by the share of the corresponding category (type), in the amount corresponding to the part of the whole share that it constitutes (see the commentary to the specified article). This excludes the company's ability to get rid of minority shareholders by using the share consolidation mechanism, i.e. shareholders holding a small number of shares.

In accordance with the commented article, both in the event of consolidation and splitting of outstanding shares, appropriate changes are made to the company's charter regarding the nominal value and the number of placed and declared shares of the company of the corresponding category (type). Such amendments to the charter of the company are carried out by decision of the general meeting of shareholders (see commentary to this article).

For the purpose of reflecting the total number of outstanding shares in the company's charter, all placed fractional shares are summed up. If as a result of this a fractional number is formed, in the charter of the company the number of outstanding shares is expressed as a fractional number.

Corporate blackmail of minority shareholders

Since the amount of rights granted by law to a minority shareholder with a small stake in the company (often only 1%) is quite large, minority shareholders can engage in so-called "corporate blackmail" ("greenmail") - demands to buy back their shares at an increased price, threatening otherwise to paralyze the work companies with lawsuits demanding the exercise of their rights.

How the society for the protection of minority shareholders was born

Prosperity Capital Management was in the top 50 hedge fund rankings by Bloomberg, ahead of many world market stars. The company manages $4 billion, being the largest investor in Russian assets. Although her story began with only $25,000 invested by a former Swedish diplomat. Prosperity is always ready to defend the interests of investors in courts and rightfully retains the status of the most irreconcilable minority shareholder in Russia.

Matthias Westman trained in the special forces of Sweden and prepared to repel the invasion of the Soviet Union during the Cold War. He was a cadet at the school of translators, where he was taught to interrogate captured Soviet soldiers. “We were trained to get information from the Russians, which is what we do to this day,” Westman said in an interview with Bloomberg. After that, he worked in the Swedish embassy, ​​but he did not have to interrogate the captured soldiers: the Soviet Union collapsed, and Russia embarked on the path of capitalism closer to it. After the collapse of the Union, Westman got a job in the corporate sales department of the Swedish broker Hagstromer & Qviberg. Then he managed to find out that in 1993 the privatization of Surgutneftegaz would begin. He spent all his savings (about $ 25 thousand), investing them in the papers of this company. The investment justified itself in six months, turning into half a million. “There was no turning back,” Westman himself jokes.

After that, he got a new job in the Russian department of the investment bank Alfred Berg, which was part of the ABN AMRO group. However, he did not work there for long and already in 1996 he organized Prosperity Capital Management (PCM). His partner was an ex-colleague at the embassy, ​​Paul Leander-Engstrom, who by that time had managed to work as a co-director of Brunswick Capital.

Matthias Westman made a lot of money from Russian privatization.

The youngest minority shareholder in history

At one time, Mattias Westman worked with Alexander Branis, a 19-year-old specialist from the St. Petersburg brokerage company Lenstroymaterialy, who tried to sell him shares in companies from St. Petersburg. Despite his young age, he had some professional experience. True, North financial company”, in which he previously worked, was closed. However, such trifles did not prevent the young financier from building a career for which he left the university. Branis's unprecedented interest in the market is confirmed by the fact that at the age of fifteen he resold vacation vouchers and invested his parents' checks. At that time, few people looked at the "crust": the desire to understand the emerging market was more important. Westman appreciated Branis's talent and in 1997 offered him a position as an analyst for the newly formed Prosperity. Despite the obvious opportunities, the move came at one of the most difficult times in one's life. Russian market. In 1998, the company almost went bankrupt: foreign investors ran out of it, as a result of which assets under management collapsed from $250 million to $35 million. But the fund managed to hold on and regain its position, and Branis not only headed the Moscow office, but also became a director and partner .

War of minority shareholders with Chubais

After the reorganization of RAO UES, Alexander Branis not only served on the boards of directors large companies, but also have access to officials of the highest rank. Since the beginning of the 2000s, PCM and large foreign funds such as Hermitage Capital Management, Unifund, UFG have owned almost a third of RAO UES shares and risked significant losses from the reorganization of the energy sector. The fact is that the management of the energy holding, headed by Anatoly Chubais, offered to sell all the power plants separately, which was beneficial for energy-dependent consumers (for example, aluminum producers, such as Oleg Deripaska). Metallurgists would have inexpensively bought electricity producers whose products they themselves were consumers of. The position of the funds and Alexander Branis was that the assets of the enterprises spun off from RAO UES should be proportionally divided among all shareholders of the holding.

Anatoly Chubais had to argue with Alexander Branis more than once

The conflict was so tough that the funds, headed by Alexander Branis, demanded the resignation of Anatoly Chubais. The situation was resolved only after the involvement of the head of the presidential administration Alexander Voloshin (not without the participation of Vladimir Putin). RAO's management made concessions and involved minority shareholders, including Branis, in the process of reforming the energy holding. The final decision took into account the interests of the funds: the holding's assets were divided into Federal network company(FGC UES), system operator and generating companies. And Prosperity, which previously owned a stake in RAO UES, became a minority shareholder of a whole "bunch" of power industry enterprises.

Yukos - the unification of the forces of minority shareholders

To unite the efforts of minority shareholders in 1999, together with other investors, Prosperity entered into new organization- Association for the Protection of Investor Rights (IPA). At that time, Mikhail Khodorkovsky's Menatep forced the minority shareholders of Yuganskneftegaz, Samaraneftegaz and Tomskneft to exchange their shares for Yukos shares at extremely unfavorable ratios. It was not possible to do anything with Yukos, but the activeness of the API led to the fact that other oil holdings, during consolidation, no longer risked “throwing” the shareholders of their subsidiaries.

Alexander Branis defends his interests extremely competently and harshly, while always remaining within the law. One of the most famous was the legal battle with Surgutneftegaz. In March 2004, the funds, together with API, filed a lawsuit demanding that they be recognized as treasury and redeem 62% of Surgut's shares that were on the balance sheet of its subsidiaries.

Alexander Branis manages other people's money all his life

Such a move would mean a significant increase in the share of other shareholders oil giant and could drastically reduce the influence of co-owner and head of Surgutneftegaz Vladimir Bogdanov. It would also raise the question of redistributing the company's huge savings, which are now estimated at $28 billion. As a result, the court sided with the management, but the story turned out to be quite loud and once again confirmed the tough reputation of Prosperity. The list of Prosperity’s active actions is very wide: the fund argued with the owner of Severstal, Alexei Mordashov, over the withdrawal of Karelsky Okatysh, sued Senator Leonid Lebedev over an offer to minority shareholders of TGC-2, complained to the president about the offer of TGC-4 by businessman Mikhail Prokhorov, joined the lawsuit against the merger of Uralkali and Silvinit due to the low valuation of the latter's preferred shares, wrote a letter to the president with a request to privatize and increase the capitalization of Transneft, which, in their opinion, was "engaged in Soviet propaganda" instead of paying dividends .

Rosneft and the offer with shares of minority shareholders

Prosperity's new target could be a deal between AAR and Rosneft, as the latter's head, Igor Sechin, made a skeptical statement about the prospects for an offer to TNK-BP minority shareholders. Now in the portfolio of the Prosperity Voskhod fund, the shares of the oil company occupy 5%. “Rosneft really has no legal obligation to make an offer under Russian law. However, it would be logical for the company to eliminate the minority presence in the corporate structure after the completion of the takeover, and PCM expects Rosneft to do so,” Prosperity Voskhod said in a report. Regardless, Branis doesn't think corporate litigation is what he wants to do, and he'd rather be thinking about a portfolio.

Case of Khodorkovsky, Lebedev and Krainov

The formal reason for starting an investigation by the Prosecutor General's Office in relation to Yukos and its owners was the request of State Duma deputy Vladimir Yudin about the legality of the privatization in 1994 of the Apatit mining and processing plant (Murmansk region) by commercial structures controlled by Mikhail Khodorkovsky and his business partners.

A few days later, a criminal case was opened on embezzlement and tax evasion by structures controlled by the Yukos oil company, from which dozens of criminal cases against individual employees of the company subsequently “spun off”.

For the first month, the investigation was carried out in conditions of heightened secrecy, and the investigation became known only on July 2, 2003, when Platon Lebedev, chairman of the board of directors of the Menatep International Financial Association, was arrested.

After the arrest of Platon Lebedev, events developed rapidly, and reports of new charges and searches were received weekly. The investigation into the case of Lebedev himself was completed in just two months. At first, he was accused of stealing 20% ​​of the shares of Apatit OJSC, then a number of other charges were added.

Some time later, Yukos was accused of tax evasion through various tax optimization schemes. Heightened tax audits followed for several years. According to senior Yukos managers, the calculated amount of arrears and fines exceeded the company's revenue over the years. According to the version of the Ministry of Taxes and Dues, the real proceeds of Yukos were much higher than declared.

At first, Mikhail Khodorkovsky himself was not very worried by the Prosecutor General's Office - he was only interrogated several times as a witness shortly after the arrest of Platon Lebedev, and then left alone for a long time. But already in the fall of 2003, unambiguous hints began to come from the prosecutor's office about the existence of serious claims against Khodorkovsky as well.

On the morning of October 25, 2003, Khodorkovsky's plane, bound for Irkutsk, landed for refueling at Novosibirsk airport. As soon as the plane stopped, it was blocked by the FSB. On the same day, Khodorkovsky was taken to Moscow, appeared before a court and was placed in the Matrosskaya Tishina pre-trial detention center.

The investigation into the Khodorkovsky case was also completed in a record two months. Claims against him completely repeated what Platon Lebedev had previously been accused of - embezzlement of other people's property, malicious non-execution of a court decision that has entered into legal force, causing property damage to owners by deceit, tax evasion from organizations and individuals, forgery of documents, embezzlement or embezzlement of another's property by an organized group on a large scale.

According to the investigation, with which the court later agreed, Mikhail Khodorkovsky and Platon Lebedev created an organized criminal group in 1994 in order to deceive them into taking possession of the shares of various enterprises (fraud) and then selling the products of the Apatit plant at reduced prices to controlled intermediary firms, which, in turn, sold them already at market prices (causing property damage by deceit or breach of trust). In addition, they were accused of tax crimes.

In addition to committing economic crimes, a number of Yukos employees were accused of organizing several murders. For example, Alexey Pichugin, an employee of the YUKOS security service, according to the prosecutor's office, organized the murder of the mayor of Nefteyugansk, Vladimir Petukhov, in 1998 - on the direct instructions of Leonid Nevzlin, chairman of the board of YUKOS.

Shortly after the arrest of Mikhail Khodorkovsky, the Prosecutor General's Office of the Russian Federation launched a "general offensive" against Yukos, indicting various employees of the group's organizations. By May 2005, the list of defendants in the Yukos cases had already exceeded 30 people, most of whom, however, are abroad and out of reach for the investigation.

The trials of Platon Lebedev and Mikhail Khodorkovsky began in April 2004, then they were merged, and, in essence, the consideration of the case began in July 2004.

According to the decision of the Moscow City Court of September 22, 2005, the guilty verdict against Mikhail Khodorkovsky, Platon Lebedev and Andrei Krainov, handed down by the Meshchansky Court of Moscow, entered into force. The Moscow City Court ruled out only one episode and reduced the punishment for Khodorkovsky and Lebedev by one year to eight years in prison.

Khodorkovsky was sent to a penal colony in the Chita region, and Lebedev - in the Yamalo-Nenets autonomous region. Meanwhile, according to Article 73 of the Criminal Executive Code of the Russian Federation, those sentenced to deprivation of liberty serve their sentences in correctional institutions within the territory of the subject Russian Federation where they lived or were convicted. The head of the Federal Penitentiary Service, Yuri Kalinin, explained the direction of Khodorkovsky and Lebedev from remote colonies by the lack of places in colonies located near Moscow and the need to ensure the safety of Khodorkovsky and Lebedev. Lebedev's lawyers first filed complaints about the illegality of their client's transfer to a colony in the Yamalo-Nenets Autonomous Okrug to the Prosecutor General's Office of the Russian Federation and the Federal Penitentiary Service, and then appealed against this transfer in court. But the court dismissed this complaint. A similar complaint by Khodorkovsky was also dismissed by the court.

I. Sechin and the fate of minority shareholders of TNK BP

The head of the Rosneft company, Igor Sechin, left the minority shareholders of TNK-BP absorbed by him without dividends. Prior to this, almost all cash had been withdrawn from the nationalized oil company.

Today the board of directors of TNK-BP recommended to the meeting of shareholders, the largest of which has recently become Rosneft, not to pay dividends for 2012. At this point, the months-long struggle between minority shareholders of TNK-BP and Igor Sechin for the right to receive a stake in the company can be considered over. Since its inception in 2003, TNK-BP has been one of the most popular Russian companies among Russian and international investors. She won this attitude thanks to very high dividends. This is a common story when a company has two equal shareholders. In this case, it was the British BP and a consortium of Russian shareholders Alfa Group Access and Renova. Each year they paid themselves, as well as the holders of 5% of the shares placed on the Moscow Exchange, 40% of the profits, or about 2.5 billion dollars. That is, minority shareholders got more than 100 million dollars. For such generous dividends, TNK-BP received from investors the title of "cash-coe", which can literally be translated as "cash cow" giving cash. So they milked her until 2011, until the Russian shareholders finally quarreled with the British, well, and then Igor Sechin came. Last October, when Rosneft was negotiating the purchase of TNK-BP, Sechin was asked what would happen to the cash left in the accounts of the acquired company and whether it would continue to pay dividends. “It's all our money,” Sechin replied, and these words will no doubt go down in the annals of Russian corporate history. Investors immediately understood everything and began to sell shares. In a few days, they collapsed by 25%. The next crash happened on March 21, when the deal was closed. As a result, in six months, since Sechin joined TNK-BP, the company has fallen in price three times, and the Russian stock market has lost a paper that attracted foreign investors from all over the world to the Moscow Exchange.

But the most amazing thing lay ahead when it became clear exactly what Sechin meant when he said “this is all our money.” This did not mean that dividends would not be paid in order to put money into the development of the company. This meant that money would be withdrawn from it, but in such a way that minority shareholders would not get a penny. This was done simply: immediately after the closing of the deal, Rosneft took a loan now from a subsidiary of TNK-BP for $10 billion. The most surprising thing is that for about the same operations, he received his second sentence former owner Yukos Mikhail Khodorkovsky. The court found that he harmed minority shareholders by buying oil from subsidiaries at underpriced prices.

Vladimir Milov, head of the Energy Policy Institute: Sechin's actions are not only similar to Khodorkovsky's scheme to a large extent, they really pull on the composition. In fact, we are talking about the withdrawal of serious money from barrels that should have been used for production needs. This is exactly what Khodorkovsky was accused of in the second case, that he stole something from his daughters and appropriated it. But here it's not even about analogies with Yukos, it's just about the fact that Sechin and his guys go to direct illegal actions, as we, in particular, see from minority shareholders. And, in principle, it all pulls on such a big criminal case.

Here we should also remember exactly how Rosneft bought the assets of the bankrupt Yukos at the auction. For this, a shell company, Baikal Finance Group, was used, which, I recall, was registered in a wine-shop in Tver. That is, in fact, exactly the same scheme was used, which is blamed on the current oligarchs who participated in the loans-for-shares auctions of the 90s. It turns out that Sechin, who is called one of the initiators of Khodorkovsky's landing, has great respect for the business methods that Khodorkovsky himself used. Moreover, having become, like Khodorkovsky once, the head of the largest oil company in Russia, he is happy to apply these same methods already in his business. Apparently, the head of Rosneft, Igor Sechin, is fully confident that he will never have to stand trial on the same charges as Khodorkovsky. Such self-confidence can only be envied.

Union of Minority Shareholders of TNK BP

For several months now, the fate of TNK-BP's minority shareholders has been in a suspended (or uncertain) state. So far, TNK-BP's minority shareholders do not have a clear idea of ​​what will happen to the shares.

Arriving different offers and negotiations are underway different levels. But for now, everything is cloudy.

Even the meeting of shareholders did not bring any clarity.

Rosneft has set up a committee for negotiations with minority shareholders of TNK-BP.

On the part of minority shareholders, there is no such effective association (or committee, or whatever you want to call it in another way).

There are individual heroes who boldly spoke from the podium of the meeting.

There are great fears that in this game (negotiation process) the financial interests of all minority shareholders may suffer greatly.

The time is coming, or has already come, when the following idea should be implemented: Create a “Union (or trade union, or in the form of any other form consistent with our Law on public organizations) minority shareholders of TNK-BP”.

The greatest benefit will be from the union, because. in this case, no decision of the board of directors will be legitimate without the consent of the trade union.

The purpose of the trade union is to defend the interests of minority shareholders, using all available opportunities for this. And the union has a lot of them. You can even try to introduce the head of the trade union to the Board of Directors of Rosneft.

If the minority shareholders of TNK-BP do not do this, they will leave their fate (financial interests) at the mercy of those forces that will push them around and not take into account their interests.

The initiative group should include people who have: the desire, ability and strength to work in the interests of all.

The main thing here is a purposeful desire and penetrating abilities.

What are minority shareholders

The fashion to buy shares of "blue chips" and become a minority shareholder of large companies has reached ordinary people, pensioners and students after the listing of two state-owned companies - NK "Rosneft" in June 2006. and VTB Bank in May 2007. If earlier minority shareholders were mainly employees of enterprises who received shares as part of the privatization or restructuring of these companies, then after these two placements, which were immediately dubbed "people's IPOs", the oil company acquired more than 154 thousand minority shareholders, and the bank - about 131 thousand

As a result, streams of people with their aspirations and demands literally poured into the annual meetings of shareholders, now as co-owners of the "national treasure". As a result, whole "currents of minors" were formed, united by ideological or other interests. As a result, the process of holding meetings of shareholders has ceased to be languid: now they are often accompanied by various unforeseen situations, and sometimes scandals.

Of course, minority shareholders are different, and the vast majority of them are ordinary citizens whom we meet every day on the street, at work and in other places. in public places. However, there are those among them who take an active position, including in relation to the companies of which they are co-owners. Often, such minority shareholders approach this issue at meetings of shareholders with full dedication of physical and mental strength.

Let's take a closer look at each of these categories.

Minority shareholders-altruists

To this type can be attributed to both romantics who decided to participate in the development of the Russian economy, and people who got the shares by chance, by the will of fate. They either received shares in the course of privatization, or bought them in order to participate in the economic life of the country, or in the activities of a particular company, in which, as a rule, they themselves work, or once worked. "Altruists" do not expect high returns from the acquired property or do not understand its value, and are subconsciously ready to donate their shares if necessary or sell them if a buyer finds them and the sale of securities does not cause much trouble. They usually do not participate in shareholder meetings.

Minority shareholders-businessmen

This category of minority shareholders is more complex. It covers not only traders who are professionally involved in stock trading, but also people of other professions that are not related to financial markets. Nevertheless, for "merchants" the market is a means for preserving and increasing their savings, for additional earnings. This category also includes journalists working in the economic sphere, who buy one share of "blue chips" in order to be able to attend shareholder meetings and thus keep abreast of the latest developments in the company.

This also includes the majority of minority shareholders who took part in the initial public offering (IPO) of state-owned companies. If one recalls how the first of these IPOs, namely the placement of Rosneft shares, took place, one cannot help but admit that there was a certain atmosphere of mystery inherent in it.

Minority shareholders-careerists

Over the years of the development of the Russian stock market, quite a few defenders of the rights of minority shareholders have appeared, both in quotes and without quotes. These are, as a rule, well-educated and legally literate, and sometimes artistic people. You can’t remember everyone, so let’s focus on the last two vivid examples - stories that in 2011. became known to the general public.

We are talking about the activities of the shareholder of TNK-BP Holding Andrey Prokhorov, who started a lawsuit against the company, of which he is a minority shareholder. The essence of the claim is simple: A. Prokhorov wants to receive compensation for the fact that his rights as a shareholder were, in his opinion, violated during the creation of the well-known and never taken place Arctic Alliance between BP, which owns half of the authorized capital of TNK-BP, and NK " Rosneft. The minority shareholder considered that the majority shareholders did not properly inform the public and shareholders about the project, and estimated his worries about this at "only" 409 billion rubles. TNK-BP naturally resists, saying it sees no point in sharing the details of the "deal of the century," as it has been called in the media, with a person who is not even a company manager. However, litigation and constant publications in the press provided A. Prokhorov with popularity and a certain recognition.

Minority shareholders-party-goers

A special category of shareholders can be called those for whom investments in the capital of companies allow them to compensate for the lack of personal communication. After all, the cherished entry in the register allows you to attend meetings of shareholders, where you can not only communicate, but also stare at celebrities, enjoy the atmosphere of corporate events, receive gifts from company logos and other attributes of the stock meeting. It was the party-goers who introduced the fashion not only to discuss agenda items at meetings, but also to sing ditties, recite poems and odes, and also rumble patriotic speeches dedicated to company management and statesmen.

This category also includes extravagant people who come to meetings of shareholders not for the sake of the event itself, but for the sake of laid tables. Of course, there are not many such investors, but they compensate for their small number by the fact that it is simply impossible not to notice them! For they consider it good form, pushing each other, to collect full packages of food at banquets on the occasion of meetings (sometimes even with their hands) in order to take it with them and thereby convey a piece of corporate spirit to their friends and household members. Moreover, party-goers do not pay attention to such trifles as the neighborhood of dessert and barbecue in the same container.

Minority shareholders-scandalists

Brawlers can be called another interesting "caste" among minority shareholders. As a rule, these are people who have not decided on the exact parameters of their requirements for the company, but who are eager to make these requirements. So, for example, at the annual meeting of shareholders of Inter RAO UES, one comrade for 10 minutes instructively expressed his opinion to the company's management about their excessive wastefulness. In the opinion of a thrifty shareholder, instead of wasting mountains of paper for printing out documents, everything that is needed could be written down on flash drives, which, in his opinion, would certainly reduce the cost of purchasing paper. "Yes, it would not only be more economical and more pleasant for everyone, but it would also allow, at the end of the meeting, to give these flash drives, for example, to someone's grandson," the minority shareholder concluded his speech somewhat unexpectedly.

But this amusing episode was surpassed by a summer story at a meeting of shareholders of Gazprom, at which one of the "owners" present persistently shouted from the audience that for three years he had been unsuccessfully trying to put his questions to the management of the concern. In response, Aleksey Miller, chairman of the board of Gazprom, reminded this activist that last year he was ready to talk to him personally, and even waited for him for half an hour. Then once again invited him to meet immediately after the meeting. But for some reason the shareholder hesitated and did not accept the offer of the gas general. At the end of the meeting, it turned out that the dissatisfied investor had disappeared somewhere, leaving the essence of his claims, the presentation of which had dragged on for years, a mystery!

Sources and links

en.wikipedia.org - Wikipedia - the free encyclopedia

dictionary-economics.ru - Economics - in the beginning there was a word

incomepoint.tv - Firsthand financial market

znayuvse.ru - I know everything

stocktalk.ru - Forum of traders

fomag.ru - Magazine about financial markets

cmza.ru - Russian law

vk.com - Vkontakte

top.rbc.ru - RBC all over the world

youtube.com - Video hosting

tvrain.ru - TV channel "Rain"

A minority shareholder is a member of a company that owns a small percentage share in the company. But although the size of his block of shares deprives him of the opportunity to directly influence the management of the company, his property is protected by law.

Protecting the interests of minority shareholders

JSC lawyers should keep in mind that minority shareholders are protected by law, that the legislative level provides for protective measures that prevent dishonest behavior of owners of a controlling stake in relation to minority shareholders:

• a number of corporate decisions are made only if there are 75% of the votes of the participants in the meeting of shareholders - changes in the charter, approval of a major transaction, a decrease in the authorized capital due to a decrease in the value of shares, etc. (Art. 48, Art. 79),
• during the election of the board of directors, cumulative voting is applied (Article 66 of the JSC Law),
• acquirer big share in a JSC is obliged to offer participants to buy back their shares at a price not lower than the calculated one (Articles 84.2, 84.7 of the JSC Law),
• the owner of at least 1% of the shares of a joint-stock company can file a claim from the whole company to its management, if it caused harm to the joint-stock company (Article 71 of the JSC Law),
• the owner of a share of 25% or more has access to the accounting and minutes of the board meeting of the JSC (clause 1, article 91 of the JSC Law).

Urgent message for a lawyer! The police came to the office

These rules are designed to protect the interests of non-controlling shareholders. Also, since 2014, the Bank of Russia has a special division, the Service for the Protection of Consumer Rights financial services and minority shareholders”, which considers appeals and complaints from financial services consumers, investors and complaints from other individuals and legal entities.

Minority shareholders during the reorganization of JSC into LLC

The rights of minority shareholders are also protected during the reorganization of a JSC into an LLC, this can be seen on an example.

There were 150 participants in the JSC register, but only about 10 of them owned 90% shares of the JSC. The rest of the shareholders were registered since the moment the joint-stock company was founded, but they were not present at the meetings, the data on them were not updated, etc. It was necessary to reorganize the joint-stock company into an LLC, and the question arose of what to do with the shares of these passive shareholders.

According to the law, an LLC can have no more than 50 participants (clause 3, article 7). The number of shareholders of the company in the described situation significantly exceeded the specified quota. Therefore, the transformation of a joint-stock company into an LLC on the terms when all 150 shareholders become members of the LLC is impossible. To reduce the number of potential participants in an LLC, the following options can be considered.

The most effective mechanism is the redemption of shares from such minority shareholders at the request of the acquirer of more than 95% of the shares of a JSC (Article 84.8 of the JSC Law). Such a transaction does not require the consent of minority shareholders or their active participation in the buyout process. The redemption of shares is carried out at a price not lower than their market value, which must be determined by the appraiser.

This method is available only to shareholders public companies and requires the consolidation of more than 95% of the shares of the JSC in the hands of one person or a group of affiliates through a voluntary or mandatory offer. In the situation described, these conditions are not met. It is possible to achieve them, but the process can be lengthy and costly.

Risky Ways to Engage with Passive Shareholders

Other options for getting rid of "dead souls", based on the actual circumstances, seem less preferable.

If large shareholders begin to buy shares from minority shareholders through the usual sale and purchase, it will require the search and obtaining the consent of these participants in the joint-stock company for the transaction.

The exclusion of passive shareholders from JSCs by a court decision due to their non-participation in general meetings is unlikely. Judicial practice on the exclusion of passive shareholders from the company in similar conditions has not been formed.

Theoretically, when making a decision on the reorganization of a JSC, it can be established that only those shareholders who voted for the transformation at the general meeting can participate in the exchange of shares for shares. However, this method of getting rid of "dead souls" is associated with the following risks:

1. tax authority may refuse to register an LLC or try to challenge the reorganization in the future if it notices that the number of shareholders of the JSC exceeded 50 persons.
2. after the transformation, some passive minority shareholders may file claims for recognition of the right to a share in the LLC. FROM a high degree the likelihood that such claims, subject to the limitation period, will be satisfied. The number of participants in an LLC, based on the results of the restoration of a passive shareholder in rights, may exceed 50 persons, which will require a reverse transformation into a JSC.

Thus, minority shareholders cannot be excluded, even if nothing is known about them.

11/10/2016

People who are far from the sphere of finance often imagine working with securities as “buying a share cheaper, selling it more expensive”, confusing investors and speculators. Besides, common misconception- the fact that shareholders purchase the company's securities, and then simply wait for their dividends, without taking part in the activities of the company - in this case, we are talking about owners of preferred, but not ordinary shares. However, even the owners of ordinary shares behave differently, because they are guided by different tasks in working with securities. Understanding the difference between minority and majority shareholders.

Number of shares and their weight

The owners of ordinary shares of any joint-stock company are divided into majority shareholders and minority shareholders. This division takes place taking into account how many shares a particular investor has, or rather, what weight his shares occupy in the total volume of the company's securities. In order to become a majority shareholder, a shareholder must own at least 5% of all shares. As a rule, majority shareholders are institutional investors or private strategic investors. Majority shareholders are usually wealthy people for whom the issue of quick profits is not as acute as for less wealthy and less experienced investors.

Each of the minority shareholders, in turn, owns less than 5% of all shares. Minority shareholders can include both private investors and speculators.

What do minority shareholders want?

The goals of minority shareholders can also be different depending on what strategy the investor is following. If we are talking about a speculator who earns on the difference in the value of securities, then his goal is to have time to buy shares as cheaply as possible in order to sell them as expensive as possible. The speculator does not participate in the management of the company at all, since he does not set any long-term goals.

Investors think differently, who acquire even a small number of shares, but still count on a more substantial profit than that of speculators. Such shareholders are interested in the company's business going well, because the higher the company's profit, the more dividends it can pay to shareholders. Such investors are in favor of all the "free" money that the company has to be used to pay dividends, because this is their income.

What do the majoritarians want?

Majority shareholders, as a rule, already have a solid fortune, and therefore the opportunity to receive money "here and now" is not of much interest to them. They earn on the growth of stock prices, which means that their main interest is the development of the company's business. If minority shareholders prefer to “withdraw” money from the business, use it to pay dividends and earn less, but right now, then majority shareholders prefer to wait (perhaps several years), invest in the development of the company and increase their potential profit several times.

The main conflict between majority shareholders and minority shareholders lies in different goals. Although each of the minority shareholders has less weight in voting at the general meeting, there can be quite a lot of such shareholders, and this gives them the opportunity to jointly influence business decisions. In addition, there are a number of legislative instruments designed to prevent a situation where majority shareholders, due to the greater weight of their securities, receive a privileged position over minority shareholders. For example, according to Russian law, to make important corporate decisions, such as changing the charter, reducing the authorized capital, liquidating the company, etc. at least three-fourths of the votes at the general meeting of shareholders are required.

A shareholder who owns an insignificant block of shares is called a minority shareholder. A minority shareholder can be compared to an ant, but this comparison has nothing to do with the growth of an insect, rather, with the size of its rights. This article will discuss what rights a minority shareholder has and how these rights are supported by law.

Minority shareholder or small shareholder

In Russian legislation, there are no concepts of a minority shareholder and a majority shareholder; instead of these concepts, there is general concept shareholder. However, the shareholders themselves decided to carry out an internal gradation, adopting Western practice, in which the concepts of minority shareholder and majority shareholder organically took root. A minority shareholder is an ordinary ordinary shareholder who has bought a certain part of the company's shares, usually a very small one. Most minority shareholders are not going to hold shares in the long term, driven by the desire to sell them as soon as they rise in price. A person who buys one share can be considered a minority shareholder. Another thing is the majority shareholder - a shareholder who has concentrated in his hands a significant block of shares, which play a significant role in the life of the company.

The essence of the “confrontation” between major shareholders and minority shareholders comes down to opposing interests and goals. If shareholders with significant stakes in their hands (majority shareholders) seek to increase the value of shares, pay minimum dividends, and, as a result, increase the amount of various annual bonuses for themselves, then minority shareholders are most concerned about just the opposite. Minority shareholders want to make a profit by increasing dividend payments, but an increase in bonus accruals to top managers, who are the main holders of a large block of shares, reduces the chances of minority shareholders to profit from dividends, and sometimes even increases the chances of being completely left without them.

The current situation can be represented as a passenger bus, where the majority shareholders are at the helm, and the minority shareholders are the passengers. As long as the road is straight, they drive quite peacefully, but as the intersection approaches, they begin to defend their direction of the path. Naturally, in whose hands the steering controls, he chooses the direction of movement. Such a crossroads can be considered the annual meeting of shareholders, where the size of dividends is discussed.

Majority shareholders treat ordinary shareholders as a forced necessity, because the money of the latter provides significant support. The hostility of the majority shareholders is understandable - minority shareholders are inclined to receive momentary benefits and, for the most part, do not want to follow the interests of the company in order to obtain greater profits in the future.

But the interests of minority shareholders suffer to a greater extent, since their interests are little considered and only when the majority shareholders themselves need it. Such a moment comes when the latter share power in the company. In this case, the votes of minority shareholders are extremely necessary for them.

Rights of minority shareholders

If you display the rights of a minority shareholder aimed at protecting his interests in one list, then they will look like this:

• the right to elect members of the board of directors;
• the right to demand redemption by the Company of a part of its shares;
• the right to deprive certain shareholders of their voting rights if there is a personal interest on their part in resolving certain issues;
• the possibility of limiting the maximum number of votes granted to one shareholder by the charter of the company;
• the ability to use the right of veto as a result of the establishment of requirements for a qualified majority of votes in deciding the most important issues.

Lately in different countries there is a tendency to increase the rights of minority shareholders. Russia has not become an exception, where amendments and additions are constantly made to the law “On Joint Stock Companies”. The main innovation aimed at protecting the rights of minority shareholders can be considered the provision in the law that regulates the actions of the majority shareholder during the reorganization of a joint-stock company. Thus, according to the regulation, the main shareholder, who has concentrated 95% of the shares in his hands, receives the right to buy out the remaining part of the shares from minority shareholders, but at a fair price.

The law also provides for vesting minority shareholders with the right to receive information about the state of affairs in the company, except for financial statements, which are available only to majority shareholders with a significant block of shares. Ordinary shareholders have access to data on the terms of transactions and financial indicators. In most litigation where the plaintiffs are minority shareholders, the essence of the matter is precisely the lack of reporting information that the company must provide to all shareholders, regardless of the number of shares in their portfolio.

The list of documents that the company must submit to the minority shareholder in case of his application:

• the decision to establish the Society;
• agreement on the establishment of the Company;
• document on state registration Society;
• minutes of general meetings of shareholders;
• documents, the provision of which is approved by the decision of the meeting of shareholders or the board of directors.

If the Company does not submit the above documents or delays their submission, then its actions can be considered illegal, contrary to Article 14.36 of the Code of Administrative Offenses of the Russian Federation. The administrative fine in this case will be about 50,000 rubles, which is clearly not a significant punishment for the company, however officials Societies may receive a more substantial penalty of up to three years of disqualification.

In addition, in a situation with reorganization, minority shareholders receive the right to exchange existing shares for those that belong to the newly opened joint-stock company. What is written in the law does not quite work in practice. The parameters and rules for the exchange of "old" shares for "new" ones have not yet been spelled out, which also leads to numerous litigations, since the main shareholders usually provide unequal exchange conditions, deliberately underestimating the value of "new" shares . The paradox lies in the fact that the plaintiffs (minority shareholders) refer to Article 77 of the Law “On Joint Stock Companies”, where “exchange” is prescribed based on the market value of shares, but the court rejects the claims as based on a misunderstanding of the law. As a solution to the dispute, the court uses Article 421 of the Civil Code of the Russian Federation, where, when determining the conversion (exchange) coefficient, the principle of freedom of contract is used, which gives the parties the right to determine the terms of the contract at their discretion. Thus, the meeting of shareholders of the company and the board of directors are not required to proceed from the market value of the share, and can set the price at their discretion.

Many market participants predict an improvement in the situation in the near future, since in 2014 and 2015. the state provides for the purchase of shares in a significant number of private companies. Naturally, if along with the shares of ordinary shareholders there are shares acquired by the state, then, most likely, disclosure of information will be carried out with enviable regularity, and reorganizations or mergers and acquisitions will take place on favorable terms for all participants in the company. At least in this case, all the rules necessary for the calculations will appear in the law.

As a result of privatization and restructuring in our country, the shares of enterprises were received by their employees.

So they were the so-called minority shareholders.

Who are minority shareholders? These are ordinary ordinary “small” shareholders who own an insignificant share of shares, which provides them with dividends, but, as a rule, does not give them the opportunity to manage the company.

Everything has changed in last years with the appearance of Russian enterprises on the stock exchange. All non-lazy inhabitants rushed to buy shares of "blue chips". As a result of such "people's IPO", the number of minotaries of the company can be in the hundreds of thousands.

What danger do they pose for the joint-stock company itself, what is the vulnerability of their position and what regulation of the rights and interests of the parties does the legislation offer - read in the article.

"Minority shareholders" and "majority shareholders"

People who are far from the sphere of finance often imagine working with securities as “buying a share cheaper, selling it more expensive”, confusing investors and speculators.

Also, it is a common misconception that shareholders purchase the company's securities and then simply wait for their dividends without taking part in the company's activities - in this case, we are talking about the owners of preferred, but not ordinary shares.

However, even the owners of ordinary shares behave differently, because they are guided by different tasks in working with securities. Understanding the difference between minority and majority shareholders.

Number of shares and their weight

The owners of ordinary shares of any joint-stock company are divided into majority shareholders and minority shareholders. This separation takes place taking into account how many shares a particular investor has, or rather, what weight his shares occupy in the total volume of the company's securities:

1. In order to become a majority shareholder, a shareholder must own at least 5% of all shares. As a rule, majority shareholders are institutional investors or private strategic investors. Majority shareholders are usually wealthy people for whom the issue of quick profit is not as acute as for less wealthy and less experienced investors.
2. Each of the minority shareholders, in turn, owns less than 5% of all shares. Minority shareholders can include both private investors and speculators.

What do minority shareholders want?

The goals of minority shareholders may also be different depending on what strategy the investor follows:

• If we are talking about a speculator who earns on the difference in the value of securities, then his goal is to have time to buy shares as cheaply as possible in order to sell them as expensive as possible. The speculator does not participate in the management of the company at all, since he does not set any long-term goals.
• Investors think differently, who acquire even a small number of shares, but still count on a more significant profit than that of speculators:
  1. Such shareholders are interested in the company's business going well, because the higher the company's profit, the more dividends it can pay to shareholders.
  2. Such investors are in favor of all the "free" money that the company has to be used to pay dividends, because this is their income.

What do majoritarians want?

Majority shareholders, as a rule, already have a solid fortune, and therefore the opportunity to receive money "here and now" is not of much interest to them. They earn on the growth of stock prices, which means that their main interest is the development of the company's business.

If minority shareholders prefer to “withdraw” money from the business, use it to pay dividends and earn less, but right now, then majority shareholders prefer to wait (perhaps several years), invest in the development of the company and increase their potential profit several times. The main conflict between majority shareholders and minority shareholders lies in different goals.

Although each of the minority shareholders has less weight in voting at the general meeting, there can be quite a lot of such shareholders, and this gives them the opportunity to jointly influence business decisions. In addition, there are a number of legislative instruments designed to prevent a situation where majority shareholders, due to the greater weight of their securities, receive a privileged position over minority shareholders.

For example, according to Russian law, to make important corporate decisions, such as changing the charter, reducing the authorized capital, liquidating the company, etc. at least three-fourths of the votes at the general meeting of shareholders are required.

Source: "portfolioand.me"

The word is borrowed from French or Italian. The initial range of meanings of words related to it is minor, minor is musical. In Russian, the use of the word "minority shareholder" as economic concept starts in the 90s of the 20th century.

The etymology of the word reflects its modern musical and economic meaning. French minoritaire from minor "smaller", "small". There is a version that the English minor was formed by an erroneous association with minus - minus. The ending of arias is typical for nouns that mean certain groups of people.

Currently used in relation to the ownership of shares. A minority shareholder is a company shareholder whose share of shares is insignificant in order to make a decision in their own interests. Such a shareholder can be either one person or the whole company. A minor share of shares formally means less than half of the shares.

To protect the rights of minority shareholders, the laws of most countries provide for cumulative voting.

Unlike traditional voting (one share - one vote - for one candidate for each seat), cumulative voting is based on the principle of cumulative selectivity. This principle means that the number of votes that one shareholder has (one vote - one share per number of board seats) can be cast for one candidate.

Example. 1000 shares: the majority (majority shareholders) - 700, minority shareholders - 300 shares. 5 seats are elected to the board of directors. Then the majority shareholders have 3500 votes, the minority shareholders - 1500. Traditional voting will not give the minority shareholders the opportunity to win their candidates. But they will try to get two candidates through using cumulative voting.

Majoritarians cast 700 votes for each candidate. Minority shareholders accumulate their votes for two candidates - 1500: 2 = 750. But they do not conduct them - in this case, the majority shareholders also use the right of cumulative voting and distribute their votes to 4 candidates, giving 3500: 4 = 875 votes for each.

In turn, minority shareholders will also regroup and focus their votes on one candidate, giving all 1,500 votes for him. Holding this candidate for a seat on the board of directors, the majority will not be able to block.

Formula to Calculate the Required Number of Shares to Hold Your Candidates

S = (V x P) : (D + 1) + 1,

where S - (Shares) the required number of shares,
V - (Voting) the number of voting shares,
P - (Positions) the desired number of seats on the board of directors,
D - (Directors) total number of seats on the board of directors.

In our example, S = 1000 × 2 (5 + 1) + 1 = 334.3. Minority shareholders have only 300 shares. They will not hold two candidates.

Source: "dictionary-economics.ru"

What are the rights of a small shareholder

A shareholder who owns an insignificant block of shares is called a minority shareholder. A minority shareholder can be compared to an ant, but this comparison has nothing to do with the growth of an insect, rather, with the size of its rights.

In Russian legislation, there are no concepts of a minority shareholder and a majority shareholder; instead of these concepts, there is a general concept of a shareholder. However, the shareholders themselves decided to carry out an internal gradation, adopting Western practice, in which the concepts of minority shareholder and majority shareholder organically took root.

A minority shareholder is an ordinary ordinary shareholder who has bought a certain part of the company's shares, usually a very small one.

Most minority shareholders are not going to hold shares in the long term, driven by the desire to sell them as soon as they rise in price. A person who buys one share can be considered a minority shareholder.

Another thing is the majority shareholder - a shareholder who has concentrated in his hands a significant block of shares, which play a significant role in the life of the company.

The essence of the “confrontation” between major shareholders and minority shareholders comes down to opposing interests and goals.

If shareholders with significant stakes in their hands (majority shareholders) seek to increase the value of shares, pay minimum dividends, and, as a result, increase the amount of various annual bonuses for themselves, then minority shareholders are most concerned about just the opposite.

Minority shareholders want to make a profit by increasing dividend payments, but an increase in bonus accruals to top managers, who are the main holders of a large block of shares, reduces the chances of minority shareholders to profit from dividends, and sometimes even increases the chances of being completely left without them.

The current situation can be represented as a passenger bus, where the majority shareholders are at the helm, and the minority shareholders are the passengers.

As long as the road is straight, they drive quite peacefully, but as the intersection approaches, they begin to defend their direction of the path. Naturally, in whose hands the steering controls, he chooses the direction of movement. Such a crossroads can be considered the annual meeting of shareholders, where the size of dividends is discussed.

Majority shareholders treat ordinary shareholders as a forced necessity, because the money of the latter provides significant support. The hostility of the majority shareholders is understandable - minority shareholders are inclined to receive momentary benefits and, for the most part, do not want to follow the interests of the company in order to obtain greater profits in the future.

But the interests of minority shareholders suffer to a greater extent, since their interests are little considered and only when the majority shareholders themselves need it. Such a moment comes when the latter share power in the company. In this case, the votes of minority shareholders are extremely necessary for them.

List of rights

If you display the rights of a minority shareholder aimed at protecting his interests in one list, then they will look like this:

1. the right to elect members of the board of directors;
2. the right to demand redemption by the Company of a part of its shares;
3. the right to deprive certain shareholders of their voting rights if there is a personal interest on their part in resolving certain issues;
4. the possibility of limiting the maximum number of votes granted to one shareholder by the charter of the company;
5. the ability to use the right of veto as a result of the establishment of requirements for a qualified majority of votes in deciding the most important issues.

Recently, in different countries there has been a tendency to increase the rights of minority shareholders. Russia has not become an exception, where amendments and additions are constantly made to the law “On Joint Stock Companies”.

The main innovation aimed at protecting the rights of minority shareholders can be considered the provision in the law that regulates the actions of the majority shareholder during the reorganization of a joint-stock company. Thus, according to the regulation, the main shareholder, who has concentrated 95% of the shares in his hands, receives the right to buy out the remaining part of the shares from minority shareholders, but at a fair price.

The law also provides for vesting minority shareholders with the right to receive information about the state of affairs in the company, except for financial statements, which are available only to majority shareholders with a significant block of shares. Ordinary shareholders have access to data on the terms of transactions and financial performance.

In most litigation where the plaintiffs are minority shareholders, the essence of the matter is precisely the lack of reporting information that the company must provide to all shareholders, regardless of the number of shares in their portfolio.

The list of documents that the company must submit to the minority shareholder in case of his application:

• the decision to establish the Society;
• agreement on the establishment of the Company;
• document on state registration of the Company;
• minutes of general meetings of shareholders;
• documents, the provision of which is approved by the decision of the meeting of shareholders or the board of directors.

If the Company does not submit the above documents or delays their submission, then its actions can be considered illegal, contrary to Article 14.36 of the Code of Administrative Offenses of the Russian Federation.

In this case, the administrative fine will be about 50,000 rubles, which is clearly not a significant punishment for the company, but the Company's officials may receive a more significant punishment in the form of disqualification for up to three years.

In addition, in a situation with reorganization, minority shareholders receive the right to exchange existing shares for those that belong to the newly opened joint-stock company.

What is written in the law does not quite work in practice. The parameters and rules for the exchange of "old" shares for "new" ones have not yet been spelled out, which also leads to numerous litigations, since the main shareholders usually provide unequal exchange conditions, deliberately underestimating the value of "new" shares .

The paradox lies in the fact that the plaintiffs (minority shareholders) refer to Article 77 of the Law “On Joint Stock Companies”, where “exchange” is prescribed based on the market value of shares, but the court rejects the claims as based on a misunderstanding of the law.

As a solution to the dispute, the court uses Article 421 of the Civil Code of the Russian Federation, where, when determining the conversion (exchange) coefficient, the principle of freedom of contract is used, which gives the parties the right to determine the terms of the contract at their discretion. Thus, the meeting of shareholders of the company and the board of directors are not required to proceed from the market value of the share, and can set the price at their discretion.

Many market participants predict an improvement in the situation in the near future, as the state provides for the purchase of shares in a significant number of private companies.

Naturally, if along with the shares of ordinary shareholders there are shares acquired by the state, then most likely information will be disclosed with enviable regularity, and reorganizations or mergers and acquisitions will take place on favorable terms for all participants in the company. At least in this case, all the rules necessary for the calculations will appear in the law.

Source: "fingramota.org"

Minority shareholder

Simply put, this is a person who has a small share of a stake in an organization, an enterprise, which does not allow him to be on the board of directors and directly manage the company itself. It is possible to receive dividends and at the same time not suffer severe damage.

The minority shareholder does not participate in the direct management of the company and because of this it is not so easy for him to fight the opinion of shareholders who have a controlling stake (CPS).

In practice, minority shareholders have the following rights:

1. receiving dividends;
2. receiving part of the funds after the liquidation of the company;
3. obtaining complete information about the company's activities;
4. the right to purchase shares of an additional issue to protect against dilution of the package;
5. the right to demand that the majority shareholders buy back their assets at the market price if the minority shareholder voted against the major decisions of the shareholders.

But the same Law stipulates that after the main shareholder has 95% of all the company's assets, he has the right to force the minority shareholders to sell the remaining part of the shares.

Let's sum up the results: a minority shareholder is an individual or a legal entity that has a minimum of rights over other shareholders.

But in any case, the legislation provides minority shareholders with sufficient rights to be able to influence the activities of the organization. Therefore, the owners of large corporations more often began to fear the so-called "corporate blackmail", when a minority shareholder can paralyze the company's activities with the help of a court.

Source: "znayuvse.ru"

Aspects of legislative protection of minority shareholders

After the privatization of enterprises state property many of their employees received the right to acquire a small number of shares created as a result of ongoing processes of joint-stock companies. In addition, persons wishing to invest in such companies, as well as newly created corporations, are given the opportunity to buy a certain amount of shares in the market.

All this contributed to the formation of a significant group among shareholders - minority shareholders. Legislative regulation legal status the latter is of great importance in order to protect their interests.

Etymology and analysis of the concept

It is traditionally considered that a shareholder is an investor, except in cases where the shares for some reason (donation, inheritance, reorganization) are acquired by him free of charge. The rights to shares owned by shareholders are enshrined in civil law.

The legal categories “minority shareholder” or “minority shareholder” that have become widespread are actively used both in practice, including judicial, and in legal literature. At the same time, the legislation does not contain definitions of these concepts. If we turn to etymology, then "minority" comes from the English minor - insignificant or insignificant.

An analysis of the legal acts of bodies of various levels and branches of government allows us to conclude that they perceive minority shareholders as owners of blocks of shares that do not provide the opportunity in all cases to control the decisions made by the company.

The legislator proceeds from the fact that minority shareholders are in a deliberately weaker position, in contrast to large (majority) shareholders, and therefore need more regulated protection, securing additional rights and guarantees.

Rights

The rights of small shareholders established by the joint stock legislation can be characterized as follows.

Minority shareholders have been given the following powers regarding the formation of corporate bodies:

• present candidates for the board of directors, the audit commission, for the position of the head of the company (sole executive body) - provided if there are shares in the amount of at least 2%;
• participate in the election of the above members of the bodies of the corporation.

In cases of reorganization, with a possible change of control, as well as in some other situations, minority shareholders have the right to:

1. purchase shares in the event of their additional issue;
2. require the company to redeem partially or wholly its shares (for example, if you voted against the reorganization or a major transaction);
3. sell the shares to the person who sent the offer to purchase the shares of the public company.

All shareholders are also granted property rights:

• for dividends;
• to receive the corresponding part of the property of the organization upon its liquidation.

Legislative protection

The legislation also provides for other rights of owners of minor blocks of shares aimed at protecting their interests:

1. the right to convene an extraordinary general meeting of shareholders (EGM) - for owners of at least 10%;
2. the authority to initiate verification (audit) of the finances and economic activities of the corporation (also granted to shareholders owning at least 10% of shares);
3. the right to participate in meetings of shareholders (GMS), and the owners of at least 1% of shares - to get acquainted with the register of shareholders as a whole;
4. the opportunity to gain access to the company's constituent documents, other internal local acts, and if the owner owns at least 25% - to accounting documents, minutes of the board of directors; and others.

Given the need to create a favorable background for the protection of the rights of the group of shareholders in question, the legislator has provided for a number of measures that are indirectly aimed at protecting the interests of this category of shareholder:

• Thus, it provides for the deprivation of shareholders of the right to vote, if the issue of committing with their personal interest is being decided.
• In addition, the charter of the company allows limiting the maximum number of votes of one shareholder at the general meeting, and the established requirements for a quorum for decision-making contribute to the use by shareholders of the opportunity to block them.

In some cases, the implementation of the rights of shareholders may be difficult due to the unfavorable state of the company.

For example, as a result of its liquidation, the owner of the shares will not be able to receive anything if the property of the corporation is absent or insufficient to satisfy all requirements, for example, in bankruptcy.

To prevent such situations, the legislator granted shareholders, including minority shareholders (a stake of at least 1%), the right to present in judicial order to the members of the management bodies (the sole executive body, or the person performing its function, members of the management board or the board of directors) a claim for compensation for losses caused to the company as a result of their guilty actions (omissions).

In addition, in case of violation of other rights of shareholders, minority shareholders have the right to use judicial protection, or apply administratively to the Central Bank of the Russian Federation.

Major issues and controversies

A feature of a minority shareholder is that the status of the owner of the shares of a particular enterprise is a temporary phenomenon for them. At the first good opportunity to profitably sell their small stake, they will take advantage of it.

This affects the nature of decisions and actions that are not designed for the long term. This is where the main disagreements arise between the two groups of shareholders (majority shareholders and minority shareholders). The payment of dividends is often the main cause of disagreement among shareholders.

Large shareholders, as a rule, plan business development, for which they lobby for a decision to reinvest profits. Minority shareholders are interested in its distribution, they do not approve of risky investments and long-term projects.

Especially corporate conflicts are manifested in the activities of the supreme governing body of the corporation - the meeting of shareholders (EGM or GMS), whose competence includes a wide range of important issues, including dividends (their payment), certain categories of transactions (large ones, for example).

Each of the decisions made can affect the value of the shares. Large shareholders who own shares in a volume sufficient to control are sometimes the founders of the company, or strategic investors, or industry owners, in whose hands controlling stakes in several industry enterprises are concentrated.

Minority shareholders own a small number of shares, on average no more than 5%, but when united, they can influence the decision-making of the general meeting.

In order to prevent the occurrence of intra-corporate conflicts, it is possible to conclude shareholder agreements, where shareholders have the right to establish obligations to vote in an agreed manner or to carry out such coordination with other shareholders in the future before each AGM, fix the sale / purchase price of shares and form a solution to other situations.

However, this method of prevention is effective for joint-stock companies with a small number of shareholders.

Source: delasuper.ru

What small shareholders can do

Any company whose shares are freely floated on the market, as a rule, has many co-owners-shareholders. Many public companies seek to obtain admission to exchange trading, go through the listing procedure and enter the quotation lists.

To do this, the business must be as transparent as possible, the information established by law must be published in the public domain for everyone who has already purchased shares or is just about to do so. However, along with such advantages for the company associated with the increase in free-float (the number of securities in free float), such as an increase in liquidity and the potential for total capitalization, a number of problems arise.

This is a threat of the transfer of a block of shares into the hands of the owners of a competing company and a possible conflict of interest between different groups of co-owners. For example, between majority and minority shareholders. Perhaps many people have information about the disagreements in a Russian company like Norilsk Nickel, which clearly demonstrates the struggle for possession of a stake in the company, allowing you to control the company.

Depending on the type of securities owned by shareholders, they have the right to participate in the general meeting, which is supreme body management.

The competence of the general meeting of shareholders includes a range of the most significant issues affecting, among other things, the distribution of profits in the form of dividends, the struggle for control over the activities of the company, the adoption of decisions that can significantly change the value of the share of shareholders (the market price of shares).

The owners of preferred shares can be attributed to a separate group, since the amount of dividends for them is strictly fixed by the charter economic society and does not depend on the results of their activities, and they cannot take part in the general meeting by virtue of the law, therefore, their interests will not be as broad as the interests of owners of ordinary shares.

By the number of securities, more precisely by their weight in total cost shares of the company, it is possible to distinguish between majority and minority shareholders:

1. Majority shareholders usually include those whose shareholding size allows them to independently influence the decisions of the general meeting.
2. Minority shareholders, on the other hand, have such a small share that their votes do not matter much, unless, of course, they purposefully and jointly support a certain position on the issues being resolved.

Large, controlling blocks of shares, as a rule, are concentrated in the hands of the founders of companies. Significant stakes in the business are held by institutional investors, sometimes by private strategic investors.

You can get an idea of ​​how much money you need to have in order to become the majority shareholder of a reliable company from the so-called “blue chips” by finding out the total volume of shares issued and multiplying their market value by an amount that will be at least 5% of the total volume .

It is important that it will be simply impossible to quietly buy up such a significant number of shares of a company listed on the stock exchange.

Each of the minority shareholders usually owns less than 5% of the company's shares. These typically include private portfolio investors and stock speculators:

• The former, holding shares for a long time, also count on dividend income.
• The second - mainly on profit from the exchange rate difference of securities.

Do speculators vote at meetings? I guess not. Thus, it is precisely minority investors who are not interested in receiving high dividends, who do not set themselves the goal of completely controlling the company, who are interested in receiving high dividends. The size of dividends can become the main reason for the disagreement between the majority shareholders, who are trying to use as much of the retained earnings as possible to expand their business or resolve other issues, and minority shareholders.

In some companies, in order to protect the interests of the founders and exclude the possibility of hostile takeovers, a shareholder agreement is concluded, the parties to which undertake to vote in a certain way at the general meeting, agree on the voting option with other shareholders, buy, sell shares at a predetermined price or refrain from any actions.

This helps to eliminate possible problems and disagreements, facilitates the task of managing a joint-stock company. However, this practice is hardly acceptable for public companies, especially those seeking to enter the exchange quotation lists.

Source: "2stocks.ru"

Protecting the interests of minority shareholders

A minority shareholder is a member of a company that owns a small percentage share in the company.

But although the size of his block of shares deprives him of the opportunity to directly influence the management of the company, his property is protected by law.

JSC lawyers should keep in mind that minority shareholders are protected by law, that the legislative level provides for protective measures that prevent dishonest behavior of owners of a controlling stake in relation to minority shareholders:

1. a number of corporate decisions are made only in the presence of 75% of the votes of the participants in the meeting of shareholders - changes in the charter, approval of a major transaction, reduction of the authorized capital due to a decrease in the value of shares, etc. (Article 48, Article 79 of Federal Law No. 208 of December 26, 1995 -FZ "On joint-stock companies"),
2. during the election of the board of directors, cumulative voting is applied (Article 66 of the JSC Law),
3. the purchaser of a large share in a JSC is obliged to offer the participants to buy back their shares at a price not lower than the calculated one (Articles 84.2, 84.7 of the JSC Law),
4. the owner of at least 1% of the shares of a joint-stock company can file a claim from the whole company to its management, if it caused harm to the joint-stock company (Article 71 of the JSC Law),
5. the owner of a share of 25% or more has access to the accounting and minutes of the board meeting of the JSC (clause 1, article 91 of the JSC Law).

These rules are designed to protect the interests of non-controlling shareholders.

When reorganizing JSC into LLC

The rights of minority shareholders are also protected during the reorganization of a JSC into an LLC, this can be seen on an example.

There were 150 participants in the JSC register, but only about 10 of them owned 90% shares of the JSC. The rest of the shareholders were registered since the moment the joint-stock company was founded, but they were not present at the meetings, the data on them were not updated, etc. It was necessary to reorganize the joint-stock company into an LLC, and the question arose of what to do with the shares of these passive shareholders.

According to the law, an LLC can have no more than 50 participants (clause 3, article 7 of the Federal Law of February 8, 1998 No. 14-FZ “On Companies with limited liability"). The number of shareholders of the company in the described situation significantly exceeded the specified quota. Therefore, the transformation of a joint-stock company into an LLC on the terms when all 150 shareholders become members of the LLC is impossible. To reduce the number of potential participants in an LLC, the following options can be considered.

The most effective mechanism is the redemption of shares from such minority shareholders at the request of the acquirer of more than 95% of the shares of a JSC (Article 84.8 of the JSC Law). Such a transaction does not require the consent of minority shareholders or their active participation in the buyout process. The redemption of shares is carried out at a price not lower than their market value, which must be determined by the appraiser.

This method is available only to shareholders of public companies and requires the consolidation of more than 95% of the JSC shares in the hands of one person or a group of affiliated persons through a voluntary or mandatory offer. In the situation described, these conditions are not met. It is possible to achieve them, but the process can be lengthy and costly.

Risky Ways to Engage with Passive Shareholders

Other options for getting rid of "dead souls", based on the actual circumstances, seem less preferable:

• If large shareholders begin to buy shares from minority shareholders through a regular sale and purchase, this will require the search and obtaining the consent of these participants in the joint-stock company for the transaction.
• The exclusion of passive shareholders from JSCs by a court decision due to their non-participation in general meetings is unlikely. Judicial practice on the exclusion of passive shareholders from the company in similar conditions has not been formed.
• Theoretically, when deciding on the reorganization of a JSC, it can be established that only those shareholders who voted for the transformation at the general meeting participate in the exchange of shares for shares. However, this method of getting rid of “dead souls” is associated with the following risks:
  1. the tax authority may refuse to register an LLC or try to challenge the reorganization in the future if it notices that the number of shareholders of the JSC exceeded 50 persons.
  2. after the transformation, some passive minority shareholders may file claims for recognition of the right to a share in the LLC. With a high degree of probability, such claims, subject to the limitation period, will be satisfied. The number of participants in an LLC, based on the results of the restoration of a passive shareholder in rights, may exceed 50 persons, which will require a reverse transformation into a JSC.

Thus, minority shareholders cannot be excluded, even if nothing is known about them.

Source: "lawyercom.ru"

When, whom and from what to protect

The topic of protecting the rights of both minority and majority shareholders has long been in the field of view of every corporate lawyer. According to lawyers, the era of total displacement of minority shareholders has begun in the country. Economically, this is due to the consolidation processes that have unfolded in metallurgy, oil and gas, construction and many other industries.

The ideological foundation of the mass wave of displacement of "financial fellow travelers" was the federal law dated December 26, 1995 "On Joint-Stock Companies" (hereinafter - the Federal Law on Joint-Stock Companies) with the sacramental norm of Chapter XI.1 on the forced redemption of shares.

Moreover, the circle of companies that are affected by these legislative innovations is much wider than that relatively small group of enterprises where the main owner directly or through affiliated companies owns 95%. This includes in general all companies with a controlling shareholder, which nothing prevents from first increasing its share to 95% and announcing a compulsory buyout.

Minority shareholders cannot influence the decision-making in the joint-stock company due to the insignificance of their share in the company. They must obey the will of shareholders who own large blocks of shares. In practice, most often the interests of minority shareholders do not coincide with the interests of majority shareholders. This leads to corporate conflicts between different groups of shareholders, during which their rights are violated.

Responsibility and innovations in the Federal Law on joint-stock companies

Article 71 of the Federal Law on Joint Stock Companies provides for the liability of members of the management bodies of the company for losses caused to the company by their guilty actions (inaction). The responsibility of a shareholder to a shareholder was introduced with the adoption of a new Chapter XI.1 of the Federal Law on JSCs on the acquisition of more than 30% of shares open society. In practice, this is the responsibility of the shareholder (or the new shareholder) to the former shareholder (the former owner of the securities).

So, in paragraph 6 of Art. 84.3 of the JSC Federal Law establishes the responsibility of the person who sent a voluntary or mandatory offer for losses caused to the owners of securities from whom such securities were purchased due to the non-compliance of the said offer or the agreement concluded on the basis of such an offer with the requirements of the JSC Federal Law.

At the same time, the person sending a voluntary or mandatory offer may not be a shareholder of the company at the time of its sending.

The former owner of the company's securities, redeemed from him on the basis of a voluntary or mandatory offer, at the time of filing a claim for the recovery of losses, in most cases, is no longer a shareholder of the company.

The situation is somewhat different with the liability of a shareholder in the event of ousting (Article 84.8 of the Federal Law on joint-stock companies), when the former owner of the securities, who did not agree with the redemption price, has the right to apply to the arbitration court with a claim for compensation for losses caused in connection with the improper determination of the price of the redeemed securities. papers.

The legislator does not directly indicate that such a claim is brought against the majority shareholder who bought back securities from minority shareholders during the crowding out. Otherwise, a significant imbalance in the scope of the rights, duties and responsibilities of the dominant shareholder, on the one hand, and other shareholders, on the other, leads to a decrease in the efficiency of company management.

In contrast to liability in the event of a takeover, clause 6 of Art. 84.3 of the JSC Federal Law, liquidation losses are not recovered for any violation of the requirements of Art. 84.8 of the Federal Law on JSCs, but only for improper determination of the price of repurchased securities.

Legal Consequences of Supercorporate Control

In conditions of ultra-high concentration corporate control As a rule, there is a conflict situation in the company. Minority shareholders formally have the rights of shareholders and insist on their observance, although in fact they have lost the opportunity to influence the will of a legal entity.

The society and the dominant shareholder see them as a burdensome burden that complicates management. The company is forced to implement procedures related to the disclosure of information and holding general meetings of shareholders, the decisions of which the minors cannot influence.

It should be remembered about the so-called dead souls - these are deceased shareholders whose heirs have not entered into their rights, or shareholders who have actually lost contact with society. In many companies, they number in the thousands, while they own no more than one or two percent of the shares.

The dominant shareholder becomes dependent on micro-minority shareholders when approving interested-party transactions, in particular when investing in the company in the form of contributions to authorized capital. Often these micro-minority shareholders are "mishandled Cossacks", they can be competitors, raiders or blackmailers.

The controlling shareholder seeks to "freeze out" the remaining micro-minority shareholders, especially since they are not real investors for the company.

European and American legal orders have come to the need to legislate, under certain conditions, the possibility of unilateral buyout of shares from minority shareholders.

The legislator came to the conclusion that from a certain moment it becomes pointless to provide formal rights to micro-minority shareholders, and provided for a legal opportunity to establish full corporate control over the company by one person.

Legal guarantees of return on investment are also achieved by establishing the obligation of the dominant shareholder to send a notice that the holders of securities have the right to demand their redemption, if they achieve an over high concentration of corporate control.

In the objective processes that are the subject of regulation of Chapter XI.1 of the Federal Law on JSCs, two main aspects can be distinguished:

1. The first is the takeover of the company through the acquisition of large blocks of voting shares. It is associated with the concentration of corporate control in one participant or a group of affiliates at the level of their ownership of more than 30% of the company's voting shares.
   
   • a mechanism was introduced to provide shareholders with a return on investment in the face of a steadily increasing concentration of corporate control;
   • mechanisms are provided to prevent the opposition of the company's management to the acquisition of large blocks of shares on the basis of public offers(temporary expansion of the competence of the general meeting of shareholders by reducing the competence of the board of directors);
   • a mechanism is provided for sending competing public offers for the acquisition of large blocks of shares;
   • additional disclosure requirements were established in connection with the acquisition of large blocks of shares in the company.
2. The second is the final ousting of minority shareholders.

   It is associated with the achievement of an ultra-high concentration of corporate control by one participant or a group of affiliates at the level of their ownership of more than 95 percent of the voting shares of the company.

   In this aspect, the following points are subject to legislative regulation:

   • the mechanism for ousting minority shareholders through the forced buyout of their shares at the initiative of the dominant shareholder is put into operation.
     This allows you to bring the process to its logical conclusion, to turn the corporation into a company of one person.

     Subject to the conditions established by the Law, it is allowed for the majority shareholder to make unilateral transactions to buy out the remaining voting shares that make up less than 5% of the company's outstanding voting shares;

   • a mechanism has been introduced that provides minority shareholders with a return on investment on their initiative. A minority shareholder has the right to demand a mandatory repurchase of their securities by the majority shareholder.

The main purpose of the special regulation of takeovers and "purges" is to protect shares held by non-controlling shareholders from depreciation by guaranteeing them the ability to dispose of them to the dominant shareholder at a price not lower than the current market price. In Art. 84.7 of the JSC Federal Law provides for a special mechanism for protecting the interests of minority shareholders.

The dominant shareholder is obliged to make an offer to acquire the remaining voting shares and securities convertible into these shares.

This is done by notifying securities holders that a critical threshold of corporate control has been passed and that they have the right to demand redemption of their securities. The holders of securities have the right to submit demands for their redemption within a period not exceeding six months. This is another guarantee of return on investment in an environment of ultra-high concentration of corporate control.

If the dominant shareholder does not send notice of the existence of the right to demand the redemption of shares, then the holders of securities themselves have the right to present claims to him within a year from the moment they learned or should have learned about the occurrence of the corresponding right. If any person has embarked on the path of monopolizing corporate control and has passed the predominant part of this path, then it is obvious that he will master the remaining section of the road.

A legal mechanism for ousting micro-minority shareholders is provided, which is based on the forced redemption of securities according to the rules formulated in Art. 84.8 of the Federal Law on joint-stock companies.

With a high degree of probability, it can be assumed that in nine cases out of ten events will develop according to the scenario of active displacement of the remaining minority shareholders by the majors.

The structure of buyout of shares at the request of micro-minority shareholders is rarely in demand, but, nevertheless, it is a necessary element that ensures a balance of interests in conditions of ultra-high concentration of corporate control.

Violations of the rights of minority shareholders upon merger

Violations of the rights of minority shareholders during mergers can potentially occur in connection with most of the above corporate procedures. Consider only the most common violations in practice.

When convening and preparing the AGM

As mentioned above, the decision to reorganize a JSC in the form of a merger falls within the competence of the GMS. Convening and preparing for the holding of the AGM for adoption this decision held in general order provided for by the Federal Law on joint-stock companies.

Therefore, violations of the rights of minority shareholders that take place in this case coincide with those that are allowed during the convening and preparation of any AGM, and include the following:

1. non-inclusion of minority shareholders in the relevant list of persons entitled to participate in the GMS for making a decision on accession (for example, shareholders - owners of preferred shares);
2. failure to notify or improper notification of the AGM (as practice shows, the 30-day deadline for notifying shareholders of the AGM, the agenda of which includes the issue of reorganization, is most often violated);
3. improper fulfillment or non-fulfillment of the obligations of the joint-stock company to provide information to shareholders in connection with the AGM (in practice, cases of providing an incomplete package of information for the AGM, the agenda of which includes the issue of reorganization, and / or unlawful refusal to provide it) are common;
4. making a decision on reorganization in the absence of a quorum for holding the GMS (according to paragraph 1 of Article 58 of the Federal Law on JSCs, the GMS has a quorum for making a decision on merger, if it was attended by shareholders - owners of ordinary and preferred shares, holding in total more than 50 % of votes of placed ordinary and preferred shares of JSC).

If the minority shareholder learned about any violations of his rights committed during the convening and preparation of the GMS for the adoption of a decision on accession, and he did not participate in it or voted against such a decision, and also if said decision his rights and legitimate interests are violated, he has the right to apply to the court with a demand to recognize the decision on merger as invalid (clause 7, article 49 of the Federal Law on joint-stock companies).

The limitation period for such claims is six months from the date when the shareholder learned or should have known about the decision.

However, the court has the right, taking into account all the circumstances of the case, to uphold the appealed decision on accession if the following conditions are present:

• the voting of this shareholder could not affect the voting results;
• the violation committed is not material;
• decision did not result in any loss to that shareholder. As shows arbitrage practice, the courts quite often use the right granted to them and refuse to satisfy the claims of minority shareholders on the above grounds.

This means that the possibilities of a minority shareholder, whose rights were violated during the convening and preparation of the GMS to make a decision on the reorganization, to suspend it or invalidate it on the basis of the violations committed, are insignificant.

In this case, the minority shareholder, who does not agree with the merger decision approved by the AGM, has the following choice:

1. convert his shares on approved terms;
2. sell them to the company under the mandatory buyout procedure. The violations allowed in this case are discussed below.

When buying back shares

If the shareholder does not wish to continue his participation in the new reorganized joint-stock company, he may withdraw from the company before the completion of its reorganization, demanding the redemption of the shares belonging to him by the joint-stock company.

This right is mainly used by minority shareholders who do not agree with the terms of the merger, but cannot influence the decision-making at the GMS due to their insignificant share in the authorized capital of the reorganized joint-stock company.

An important guarantee for the exercise of this right by minority shareholders is to ensure the buyback of shares at a fair market price.

The share redemption price is determined by the board of directors on the basis of an independent assessment of the market value of the JSC shares, carried out prior to the start of the merger procedure, and cannot be lower than it.

In practice, abuses are widespread in connection with the determination of the market value of shares by an independent appraiser for the purposes of the subsequent underestimation of the redemption price by the board of directors.

For example, the appraiser makes a discount on the value of shares that make up a "minority stake." As a result, the board of directors sets a buyout price that is significantly lower than their fair market value. Moreover, in some cases independent evaluation not carried out at all.

In this situation, the board of directors may determine the buyout price based on the value of net assets, other performance indicators of the JSC, or at its own discretion.

Shareholders must be notified of their right to demand the redemption of shares, as well as its price and the procedure for exercising it. In accordance with paragraph 2 of Art. 75 FZAO, the specified information must be included in the notice of the GMS, sent to the shareholders. Failure to include such information is a violation of shareholder rights.

The Supreme Arbitration Court of the Russian Federation in its practice does not recognize such a violation as significant and as an unconditional basis for recognizing the decision of the GMS as invalid, since it does not deprive the shareholder of the very right to demand the repurchase of the shares belonging to him by the JSC.

This position cannot be considered indisputable, since in order to make decisions on whether or not to approve the accession to the AGM, sell or not their shares to the company, the shareholder must receive all information about the conditions and procedure for the redemption of shares before the AGM.

Therefore, the non-inclusion of such information in the notice of the AGM should be recognized as improper notification of shareholders about the AGM and be the basis for recognizing the decision on reorganization as invalid on the conditions specified above.

Related to the determination of the share conversion ratio

In connection with the termination of the joint-stock company to be merged, its shareholders must become shareholders of the joint-stock company to which the merger is being carried out. Otherwise, their rights will be violated.

Preservation of succession in relations existing between the shareholders and the reorganized company is formalized through the transfer (placement) to the shareholders of the merging JSC of the shares of the company to which the merger is carried out in exchange for their shares (conversion).

The number of shares that a shareholder of the merging JSC receives as a result of the procedure under consideration is calculated based on the conversion factor. It is a formula and is defined as the number of shares of each category (type, series) of the merging JSC, which are converted into one share of the merged JSC (clause 8.5.4 of the Issue Standards).

It is obvious that the conversion ratio is one of the most important conditions for merger, since it determines the ratio of the rights of shareholders in the reorganized joint-stock company to which another joint-stock company has joined. Current legislation does not contain any requirements for calculating the conversion rate.

Therefore, the conversion factor is the result of an agreement between the parties (reorganized companies). The conversion ratio is specified in the merger agreement and in the documents on the issue of additional shares of the AO to which the merger is being carried out (if applicable). The accession agreement is developed and agreed upon by the management of the reorganized companies and approved by their shareholders.

Thus, shareholders do not have the opportunity to influence the content of the accession agreement. If they object to its provisions, they can vote against accession.

However, if such a decision is still approved at the AGM, the connection will be carried out precisely on the conditions stipulated by the agreement. If the dissenting shareholder has not sold his shares to the company under the mandatory buyout procedure, they are subject to conversion on the terms stipulated by the merger agreement.

In this case, the shareholder has no guarantees that his rights will not be violated and, as a result of the conversion, he will receive shares with the same economic value that he owned before the merger.

In the absence of clear legal requirements The practice of determining and applying the conversion factor is very diverse. The conversion factor may be determined based on the nominal values ​​of the respective shares, the calculation of the value of the assets of the companies being reorganized (in some cases, net assets), their business as a whole, the market value of the shares, and other criteria at the discretion of the management of the companies being reorganized.

For example, the parties may agree that a specific shareholder must receive/keep a certain share in the authorized capital of the JSC to which the merger is being carried out; the conversion factor in this case is calculated based on this condition.

In some situations, shares are converted at a coefficient that generally differs from that specified in the accession agreement.

Thus, in a court case considered by the Moscow Arbitration Court, the conversion ratio specified in the accession agreement was 0.24 (rounded up to 1/100), and the placement of additional shares was carried out at a coefficient of 0.24282 (rounded up to 1 /100,000).

The use of different approaches to the calculation of the conversion ratio directly affects the share of shareholders of the merging JSC in the authorized capital of the company to which the merger was carried out.

The absence of any legal guarantees leads to a deliberate underestimation of the share of new shareholders in the authorized capital of the joint-stock company to which the merger was carried out, and / or providing them with a lower economic value than they had before the merger.

Additional tool that can influence the ratio of shareholder rights is the application of the rounding rule. Conversion rate calculations in most cases result in a fractional rate. As a result of its application, a fractional number of shares to be placed is formed. But in accordance with paragraph 3 of Art. 25 FZAO their formation as a result of reorganization is not allowed.

The solution to this problem is either to round the coefficient to an integer (it must be admitted that this method does not always give an integer number of shares), or to round off the resulting number of shares. It should be said that any rounding affects the redistribution of shares between shareholders: for some, this means an increase in their shares, for others, on the contrary, a decrease.

The only way to avoid any errors in the distribution of shares is to introduce at the legislative level the possibility of forming fractional shares during the reorganization.

However, instead of this, the legislator decided to fix the rounding rule: clause 8.1.3 of the Issue Standards provides that if the estimated number of shares to be placed by the shareholder of the reorganized JSC is expressed as a fractional number, then the decision to issue shares should provide for the procedure for rounding this estimated number to the whole number of shares placed during the reorganization.

The rounding procedure may be determined by the management of the reorganized companies at their own discretion, but must be subsequently approved by the shareholders. If there is no such order in the decision on accession, then the rules of mathematical rounding should be applied.

At the same time, the Issue Standards state that if the estimated number of shares is expressed as a fractional number that is less than one, the rounding procedure should provide for rounding up to one whole share. It is not clear from the text of the Emissions Standards whether this requirement can be ignored in cases where their own rounding rules are established, or whether it should always be applied.

This uncertainty creates additional features to violate shareholder rights.

Influence of external factors

The crisis in the world, and, consequently, in Russian economy. Given the significant fall in the main stock indices both in our country and abroad, it is unlikely that in the near future we can expect a large-scale placement of shares of domestic companies on the stock markets.

Consequently, sharp increase the number of minority shareholders in Russian companies will not occur. On the contrary, one should expect a decrease in their number. The situation can be taken advantage of by controlling shareholders, who, in the conditions of low prices for securities, will be able to strengthen their positions by buying up shares on the stock market.

At the same time, many entrepreneurs whose companies have been hit by stock and banking crashes may start looking en masse for strategic investors who would agree to buy a large block of shares in their enterprises.

It is also quite possible to expect the consolidation of the assets of many domestic entrepreneurs, which will turn them from controlling shareholders into large ones. In connection with the already mentioned financial crisis, the emerging tendencies to increase the percentage of minority shareholders in Russian companies disappeared at lightning speed.

Although recent years have been rich in additional issues of shares of domestic companies. Russian joint-stock companies carried out placements both on foreign exchanges, primarily in London, and on domestic trading floors(including the so-called people's IPOs).

The emergence of a large number of minority shareholders in companies could not but affect their systems corporate governance. By the way, in modern circumstances, the importance of minority shareholders for the companies themselves began to increase. For example, in contrast to the privatization of the 90s, modern minority shareholders paid quite real shares for the shares transferred to them. cash.

In addition, the attitude of members of management bodies and controlling shareholders towards minority shareholders began to affect the access of Russian joint-stock companies to funds provided by foreign financial institutions (loans, placement of depositary receipts).

Given the above, we can safely state the following:

• First, a system of super-concentration of share capital has developed in Russia, with domestic controlling shareholders striving to own at least 75% of voting shares, and, as a maximum, to bring their shareholding to 100%.
• Secondly, over the past few years, Russian joint-stock companies have needed to improve the legislative regulation of relations between large shareholders (as well as between controlling shareholders, on the one hand, and large ones, on the other), who actually jointly manage the company.

This is due to the need to improve the quality of corporate governance and reduce the number of ongoing corporate conflicts.

• Thirdly, the emerging trend of a gradual increase in the share of minority shareholders in the share capital structures of Russian companies, taking into account the fall in leading stock indices, most likely will not continue.

Obviously, in the short term, this circumstance will not only reduce the number of minority shareholders, but also reduce their importance in the eyes of members of the management bodies and controlling shareholders of Russian companies. Thus, in the near future, Russia is likely to remain a state with a super-concentrated system of equity capital.

However, there are prerequisites for the fact that the share of companies in which there is only one controlling shareholder and there are no owners of large blocks of shares will gradually decrease.

This implies the need for an early reform of domestic joint-stock legislation in order to improve the quality of corporate governance by domestic joint-stock companies.

Remains open question on the fate of Russian minority shareholders:

1. On the one hand, many foreign investors left the domestic stock market en masse, rapidly getting rid of minority stakes in Russian companies.
2. On the other hand, domestic private and institutional investors, sadly pondering the future fate of their investments.

It would seem that in the current conditions there is no point in paying attention to the problem legal regulation position of minority shareholders. However, it can be assumed that such a position is not distinguished by far-sightedness and pragmatism.

Sooner or later, the financial crisis will end, and the domestic economy will have to regain lost ground, including in the securities market. During this period, the key moment will be the pace of the return of investors' money to the stock market.

If the domestic economy is attractive to potential investors, they will return to the market much faster.

As noted earlier, although not the most important, but one of the most significant factors determining the attractiveness of the stock market for investors, are the level of corporate governance, legal and judicial guarantees for ensuring the rights of minority shareholders.

Unfortunately, the current legislation and the current practice of its application do not meet these requirements.

As a result, in better situation are shareholders owning a large block of shares, while a significant part of the adverse consequences affects minority shareholders. The resolution of these issues is the key to reducing corporate disputes between JSC shareholders to a minimum and the attractiveness of the Russian capital market for attracting foreign investors.