Stock. Shares What is a convertible preferred share

The charter of a non-public JSC does not provide for preferred shares. How to release them? I would like to know the procedure step by step.

Answer

Shareholders often contact us with a desire to sell certain shares. Sometimes, when they hear the final price of their shares, they are very surprised. Their surprise is due to the fact that they really expected to hear a completely different number. And both up and down.

It's not all about our greed or the complete ignorance of shareholders, but about the conversion of shares. Over the many years of owning shares, shareholders simply did not know that since then there had been a conversion of their shares (and sometimes more than one). The shares of many companies have undergone changes, i.e. conversion.

The most “harmless” type of conversion of shares is when preferred shares are converted into ordinary shares one for one, i.e. 1 preferred share simply became 1 ordinary share and the total number of shares in this case is easy to calculate. For example, such conversion occurred in companies such as Lukoil, Rosneft and a number of others.

But most often the conversion does not occur 1 to 1, i.e. for example, 1 share can be converted into 5 or vice versa - 5 into 1. And it happens that the company completely changed its legal name or merged with another enterprise.

To sort out this whole “conversion mess,” we decided to post reliable information on the conversion of each specific issuer (enterprise) separately:

Conversion of Alrosa shares

Alrosa shares were fragmented, i.e. 1 old(active) promotion turned into 27005 new. But the final value of the stake has not changed.

Conversion of Norilsk Nickel shares

The Norilsk Nickel enterprise was previously a Russian Joint Stock Company (RAO), now the enterprise is called the Norilsk Nickel Mining and Metallurgical Combine (MMC). All shares of RAO Norilsk Nickel were converted into MMC Norilsk Nickel in proportion 1 to 1, but provided that the shareholder wrote an application for transfer of shares(at one time, the company sent each shareholder a written notice of the mandatory transfer of shares). Otherwise, the shares are invalid and it is impossible to sell shares of RAO Norilsk Nickel now.

Conversion of Lukoil shares

Lukoil shares were easily converted. 1 preferred share converted to 1 ordinary share, i.e. 1 to 1.

Conversion of Rosneft shares

Rosneft shares were also easily converted. 1 preferred share V 1 ordinary share, i.e. 1 to 1.

But several once separate companies also converted to Rosneft, and here the proportions are completely different:

Sakhalinmorneftegaz:

1 ordinary share was converted into 2.98 ordinary shares of Rosneft

1 preferred share was converted into 2.23 ordinary shares of Rosneft

Purneftegaz:

1 ordinary share was converted into 6.09 ordinary shares of Rosneft

1 preferred share was converted into 4.57 ordinary shares of Rosneft

Stavropolneftegaz:

1 ordinary share was converted into 24 ordinary shares of Rosneft

1 preferred share was converted into 16.8 ordinary shares of Rosneft

Arkhangelsknefteprodukt:

1 ordinary share was converted into 0.376 ordinary shares of Rosneft

1 preferred share was converted into 0.263 ordinary shares of Rosneft

Conversion of Rostelecom shares

At Rostelecom, the conversion of shares took place in 2012. Many shareholders have statements with the number of shares that does not correspond to the real number. The fact is that before the conversion there were several companies (in the regions of Russia): Dalsvyaz, Dagsvyazinform, Volgatelecom, North-West Telecom, Sibirtelecom, Uralsvyazbinform, Central Telecommunications Company, Southern Telecommunications Company. All these companies were converted into 1 company - Rostelecom.

Moreover, all ordinary and preferred shares were converted only into ordinary shares. The best way to check the conversion and find out the number of Rostelecom shares you currently own is on the Rostelecom website. To do this, just enter “Rostelecom calculator” in any search engine. Rostelecom shareholders also receive voting letters indicating the number of votes. This is the number of ordinary shares owned by the shareholder.

Conversion of Sberbank shares

The majority of shareholders received their Sberbank shares in 1993 in the form of special certificates. 1 ordinary share of 1993 was converted into 1000 ordinary shares, and 1 preferred share was converted into 20 preferred shares.

The issue of preferred shares can be used to redistribute corporate control.

The legislation does not establish a requirement that the par value of preferred shares must be equal to the par value of ordinary shares. Moreover, if preferred shares acquire voting rights, then each such share gives its owner one vote, regardless of its par value. If preferred shares were not previously issued, upon their issue the existing shareholders - holders of ordinary shares do not have a priority right to acquire preferred shares.

Thus, a shareholder or group of shareholders owning 75% of the company’s shares has the opportunity to make a decision at a general meeting of shareholders on the issue and placement by private subscription of low-par preferred shares, the number of which will significantly exceed the number of previously issued ordinary shares. After a dividend has not been paid on these shares at least once, the owner of preferred shares will become the owner of a complete controlling stake at all subsequent general meetings of shareholders.

True, the implementation of such a scheme for redistributing corporate control requires care.

Firstly, the initiator must have a sufficiently large number of voting shares to allow it to obtain a qualified majority at the general meeting of shareholders necessary to make a decision to increase the authorized capital.

Secondly, one should be extremely careful in determining the placement price of preferred shares. We remember that the placement price of additional shares must correspond to their market value. Today it has developed arbitrage practice when minority shareholders appeal such decisions. If the shareholder proves that the placement price of low par preferred shares does not correspond to their market value, then the court will high degree probably invalidates the issue. Thus, an unconditional recommendation when placing preferred shares in conditions where such a decision can be appealed is to set the placement price close to their real market value.

Thirdly, we should not forget about approving transactions to place additional shares as related-party transactions.

Art. 83 of the Law provides that, depending on its parameters, an interested party transaction can be approved either by the board of directors or by the general meeting of shareholders of the company. However, since clause 4 of this article provides that if the subject of a transaction or several interrelated transactions is property, the value of which according to data accounting(offer price of the purchased property) is 2 percent or more book value assets of the company according to its data financial statements as of the last reporting date, a decision can only be made by a general meeting with a majority vote of all shareholders who are not interested in the transaction - owners of voting shares; the option of a decision being made by the board of directors is of no interest in this case.

What needs to be taken into account when preparing a general meeting of shareholders, at which an interested party transaction for the placement of preferred shares will be approved?

First of all, you need to remember that if shares are placed directly to any shareholder or his affiliates
persons, this shareholder does not vote on this item on the meeting agenda. Thus, shares must be placed either to an independent (albeit formally) person, or the majority of other (disinterested) shareholders must agree with such placement and vote for it.

Second important point when holding such a general meeting, the decision must be made by a majority vote of all shareholders not interested in the transaction. Moreover, in this case, the legislator requires that the majority be taken into account specifically from all disinterested shareholders, and not from disinterested shareholders who took part in the general meeting.

Practice shows that in “old” joint-stock companies that arose during the period of mass privatization, this condition is often very difficult to ensure. Indeed, the main block of shares is usually concentrated in the majority shareholders, and if they are interested parties in the placement of preferred shares, only minority shareholders will vote. However, many of them died, and no one inherited their shares; moved without notifying the registrar and do not receive notice of the meeting. Finally, they simply never go to meetings. If there are more than half of such shareholders, it will be impossible to make a decision to approve the interested party transaction. The only way out that the author sees in this case is to take measures in advance to ensure that the transaction for the placement of preferred shares does not fall under the definition of an interested party transaction given in the law.

Here is another way to change the “balance of forces.”

Current legislation provides for the possibility of consolidating shares of the company. That is, two or more outstanding shares of the company can be, in accordance with the provisions of Art. 74 of the Law, converted into one newly placed share. Such a decision will be made by a simple majority of votes of shareholders - owners of ordinary shares and can only apply to these ordinary shares.

Thus, the total number of outstanding ordinary shares may be reduced by any integral number. The number of preferred shares will remain unchanged.

Consequently, the number of votes of shareholders - owners of ordinary shares will be reduced, but there will be no votes of preferred ones. The situation will not change even if, as a result of the conversion, a number of shareholders will have fractional shares. Clause 3 art. 25 of the Law establishes that a fractional share provides the shareholder - its owner with the rights provided by a share of the corresponding category (type), in an amount corresponding to the part of the whole share that it constitutes. Consequently, even a share split into several parts will give only one vote in total. Thus, the goal of gaining more complete control over society will be achieved.

Let's consider another situation. A shareholder (group of shareholders) interested, for example, in placing company shares through a closed subscription or making certain changes to the charter, does not initially have a qualified majority of votes allowing such a decision to be made. However, he (his allies in this matter) has at his disposal preferred shares, the size of the dividend for which is determined in the company's charter, in an amount that, together with ordinary shares, allows this to be done.

If the number of votes belonging to such a shareholder turns out to be higher than 50 percent of the total number of votes of shareholders who took part in the general meeting of shareholders (taking into account the extremely low activity of shareholders, this figure may not be too large), such a shareholder has the opportunity to block the adoption of a decision by the general meeting of shareholders on the payment of dividends on preferred shares. And the preferred shares will become voting shares at the next meeting.

Third situation. A company that has issued both ordinary and preferred shares is about to make a decision that does not meet the interests of minority shareholders. If a dividend on preferred shares was previously paid, then such shares are not voted at the meeting. But Article 43 of the Federal Law “On Joint-Stock Companies” contains a list of situations when the general meeting of shareholders does not have the right to make a decision on the payment of dividends on preferred shares. For example, if the company meets the criteria of insolvency (bankruptcy).

If a shareholder identifies such a situation, he will be able to judicial procedure recognize the decision of the general meeting of shareholders on the payment of dividends as invalid (regardless of whether the dividends have already been physically paid), thereby dramatically changing the balance of power at the upcoming general meeting.

Let us draw the reader's attention to some subtleties of the current arbitration practice.

There have been cases when the annual general meeting of a joint stock company was not held or its holding was disrupted. Accordingly, no decisions were made at such a meeting on the payment of dividends on preferred shares. Will preferred shares become voting?

A number of lawyers consider it possible in this situation to consider the company's preferred shares as voting. However, judicial practice takes a different path, indicating that, within the meaning of the provisions of the Law, owners of preferred shares receive the right to vote if the annual meeting took place, but the issue of paying dividends on preferred shares was not resolved or a decision was made to refuse to pay dividends. Failure to make a decision on the payment of dividends due to the failure to hold a meeting or the adoption of a decision on non-payment of dividends at an illegal meeting does not provide the holders of preferred shares with voting rights.

There is also judicial practice based on a literal reading of the provisions of paragraph 5 of Art. 31 of the Law. According to it, the voting rights of preferred shares arise precisely in connection with the decision on non-payment or incomplete payment of dividends. If the decision to pay dividends is made, but the dividends are not paid, the right to vote does not arise.

Perhaps, what is common to all the scenarios discussed above is that when they are implemented, the majority shareholder (or group of shareholders) uses a dominant position in society to create a situation that actually infringes on the rights of minority shareholders. Today, all the described actions are absolutely legal. However, for last years Federal service By financial markets, Ministry economic development Bills have been repeatedly prepared to close the possibility of using the dominant position of majority shareholders. Thus, in various documents it was proposed to establish that the par value of the company's preferred shares cannot be lower than the par value of ordinary shares, or to establish that when placing preferred shares of any type, shareholders - owners of ordinary shares have the right of pre-emptive acquisition in an amount proportional to the number of shares they have ordinary shares.

Thus, it is likely that in the near future, most of the opportunities discussed above for using preferred shares to obtain or strengthen corporate control in a joint stock company will become illegitimate.

Preferred shares as an income payment tool

Let us dwell on the opportunities that preferred shares provide to the majority shareholder in making a profit.

Payment of income through dividends (we will stipulate that further we're talking about about residents of the Russian Federation) is beneficial to individuals in any case, since it is subject to a 9% tax, which is significantly more profitable than paying other types of income. It is also convenient for making a profit legal entities. In this case, when calculating income tax, its rate will be 0%, provided that on the day the decision is made to pay dividends, the organization receiving dividends has continuously owned at least 50 percent of the contribution (shares) for at least 365 calendar days. in the authorized (share) capital (fund) of the organization paying dividends or depositary receipts giving the right to receive dividends in an amount corresponding to at least 50 percent total amount dividends paid by the organization.

As shown above, the majority shareholder - the owner of more than 75% of the voting shares of the company has the opportunity to become the sole owner of preferred shares and in accordance with the provisions of Art. 43 of the Law to actually withdraw any share of the company’s net profit in the form of dividends on them.

An essential point in receiving income on preferred shares, the amount of dividend on which (the procedure for determining it) is determined by the company’s charter, is the fact that declared (paid dividends) should not exceed this amount fixed in the company’s charter. Otherwise, there is a high probability that the decision to pay dividends on preferred shares will be appealed by the shareholders who voted against it in court. Of course, this circumstance is important only if the company has other shareholders who are not part of the group interested in paying such dividends.

Returning to what was said above, I would like to note another opportunity due to the relatively low level of taxation of dividend income for individuals. The placement of preferred shares to key employees of the JSC will actually allow them to pay part of their remuneration in the form of dividends. However, if we consider both complete chains of taxation (for payment under an employment contract and for payment in the form of dividends), starting from the receipt of revenue by the company to the payment of funds directly to an individual, it becomes clear that the question of the profitability of such a decision is not entirely simple.

The author does not consider it possible in the format of this article to dwell in detail on all financial aspects such payment, however, in his opinion, the costs of society for any of the paths under consideration will, in the general case, be comparable. And of course, you need to remember that dividends can only be paid if there is a net profit in the company.

In addition, it makes sense to compare the benefits of paying remuneration through an employment contract or dividends when we are talking specifically about the company’s employees associated with it through labor relations. But in the course of JSC activities, situations often arise when interaction with certain individuals is extremely important and beneficial. At the same time, the possibility of concluding an employment contract with them is excluded or significantly complicated. In this case, the placement of preferred shares to such persons, allowing them to receive the necessary income, may be the optimal solution.

For quite a long time, the main problems preventing the spread of this practice were the impossibility of stopping payments on shares upon completion of cooperation and the fear of an unfavorable vote by their owners in provided by law cases. Tried to solve them different ways. Thus, advance receipt of “reverse” transfer orders was often used. However, this path cannot be considered legal.

There have been attempts to enter into repurchase agreements providing for the right to repurchase preferred shares after a certain period. But this option, from the author’s point of view, is unacceptable, because in accordance with the provisions of paragraph 13 of Art. 51.3 of the Federal Law “On Joint Stock Companies” in the event that the list of persons entitled to receive from the issuer dividends transferred under the first part of the repurchase agreement is determined in the period after the fulfillment of obligations to transfer securities under the first part of the repurchase agreement and before the fulfillment of transfer obligations securities under the second part of the repurchase agreement, the recipient of the dividend will be the one who was the shareholder on the date of compilation of such a list.

Existing judicial practice suggests that it is possible to prevent the voting of owners of preferred shares even in the event of non-payment of dividends to them. To do this, it is enough not to determine the size of the dividend on them. However, such securities in many cases will not suit their prospective purchasers.

Today, the author knows of only one option that allows, with a high degree of probability, to ensure the required regime for ownership of preferred shares and the termination of such ownership. Its implementation is subject to the provisions of Art. 32.1 of the Law on Joint Stock Companies, dedicated to the shareholders agreement.

A shareholder agreement may provide for the obligation of its parties to vote in a certain way at the general meeting of shareholders, to agree on a voting option with other shareholders, to acquire or alienate shares at a predetermined price and (or) upon the occurrence of certain circumstances, to refrain from alienating shares until the occurrence of certain circumstances, and also carry out in concert other actions related to the management of the company, its activities, reorganization and liquidation of the company.

Thus, it is possible to conclude a shareholder agreement, according to which the acquirer (owner) of preferred shares will not only be obliged to vote at the general meeting of shareholders in accordance with the instructions of the owners of ordinary shares, but will also have to sell them under certain conditions at a certain price.

Unfortunately, this method is not flawless. The problem is that the legislative possibility of concluding shareholder agreements has appeared quite recently. In this regard, there is practically no judicial practice on the issue of limiting rights (or imposing additional obligations) on owners of preferred shares, and, therefore, it is impossible to predict possible nuances enforcement when courts consider claims based on the provisions of shareholder agreements in the future.

We will be especially careful if preferred shares were issued by an open joint stock company

Shareholders of an open joint-stock company must additionally take into account that if, as a result of the described actions, the number of voting shares controlled by them together with affiliates exceeds one of the thresholds of 30, 50, 75%, they will fall under the scope of Chapter. XI.1 of the Law, according to which they will have to carry out complex and expensive procedures related to the direction and implementation of the so-called “ mandatory offer» other shareholders of the company. Until such a proposal is submitted, a shareholder may vote only with a number of shares not exceeding the first threshold passed during such acquisition. Due to the limited scope of this article, the author does not consider it possible to dwell in more detail on the implementation of these procedures, but considers it necessary to note two circumstances.

Firstly, current practice treats giving preferred shares voting status as an acquisition option established by law block of shares. That is, if previously a shareholder, owning 25% of ordinary and 20% of preferred shares, did not have the obligation to send a mandatory offer to the company to buy out all remaining shares, then as soon as the preferred shares he owns become voting, he will have this obligation. This situation applies even to cases where the acquirer himself did not vote for the decision by virtue of which the preferred shares became voting, or even voted against such a decision. Clause 8 art. 84.2 of the Law contains a list of cases of acquisition of shares in which the requirements of Ch. XI.1 do not apply. Our case in this list Excluded.

Secondly, these procedures can bring very interesting results in the future. Thus, if, as a result of the implementation of the “mandatory offer” procedures, a shareholder (singly or jointly with affiliates) becomes the owner of more than 95% of the voting shares of the OJSC, while at least 10% of this number will be acquired by him during these procedures, the shareholder has the right at his request, buy back shares from other shareholders, which will provide him with complete control over the company.

What is presented in this article does not exhaust, of course, all the possibilities and all the problems associated with the use of preferred shares in corporate governance procedures. However, the author hopes that the presented material will allow readers to more fully utilize their potential and avoid the most obvious mistakes.

See, for example, Federal Decree arbitration court North Caucasus District dated January 28, 2005 No. F08-6439/04; Resolution of the Federal Arbitration Court of the East Siberian District dated December 12, 2006 No. A19-11170/06-53-F02-6682/06-S2.

Part two Tax Code Russian Federation dated 05.08.2000 No. 117-FZ, art. 224, paragraph 4.

Resolution of the Federal Arbitration Court of the Northwestern District dated July 21, 2008 No. A56-19949/2006.

See, for example, Resolution of the Federal Arbitration Court of the East Siberian District dated December 12, 2006 No. A1911170/06-53-F02-6682/06-C2; Resolution of the Federal Arbitration Court North Caucasian District dated January 28, 2005 No. F08-6439/04.

Federal Law of June 3, 2009 No. 115-FZ “On Amendments to the Federal Law “On Joint-Stock Companies” and Article 30 Federal Law“On the securities market” (came into force on June 9, 2009).

A share is an issue-grade security that secures the rights of its owner (shareholder) to receive part of the JSC’s profit in the form of dividends, to participate in the management of the JSC and to part of the property remaining after its liquidation (Article 2 of the Federal Law of April 22, 1996 N 39-FZ “ On the securities market").

There are ordinary and preferred shares, distributed by open or closed subscription. Owners of ordinary shares of the company can participate in the general meeting of shareholders (hereinafter referred to as the GMS), have the right to vote on all issues within its competence and the right to receive dividends, and in the event of liquidation of the JSC, they have the right to receive part of the property (Article 31 of the Federal Law of December 26, 1995 year N 208-FZ). Each ordinary share gives its owner the same amount of rights and is not subject to conversion into preferred shares or other securities.

JSCs can issue preferred shares of several types, and the company's charter must determine the amount of dividend and (or) the value paid upon liquidation of the company (liquidation value) for each type of preferred shares. The order of payment of dividends and the liquidation value of each type of preferred shares are determined.

There are cumulative and convertible shares. For preferred cumulative shares, unpaid or incompletely paid dividends are accumulated and paid no later than the period determined by the charter of the joint-stock company.

The company's charter may provide for the conversion of preferred shares of a certain type into ordinary shares or preferred shares of other types at the request of the shareholders - their owners, or the conversion of all shares of this type within the period determined by the company's charter. Conversion of preferred shares into bonds and other securities, with the exception of shares, is not permitted. Conversion of preferred shares into ordinary shares and preferred shares of other types is permitted only if this is provided for by the company's charter, as well as during the reorganization of the company.

Shareholders - owners of preferred shares of a certain type, the amount of dividend for which is determined in the company's charter, with the exception of shareholders - owners of preferred shares cumulative shares, have the right to participate in the General Meeting of Shareholders with the right to vote on all issues within its competence, starting from the meeting following the annual General Meeting of Shareholders, at which, regardless of the reasons, no decision was made on the payment of dividends or a decision was made on incomplete payment of dividends on preferred shares of this type. The right of shareholders - owners of preferred shares of this type to participate in the General Meeting of General Meetings terminates from the moment of the first payment of dividends on these shares in full.

Shareholders - owners of cumulative preferred shares of a certain type have the right to participate in the General Meeting of Shares with the right to vote on all issues within its competence, starting from the meeting following the annual General Meeting of Shares, at which a decision should have been made on the payment of the full amount of accumulated dividends on these shares, if such a decision was not made or a decision was made on incomplete payment of dividends. The right of shareholders - owners of cumulative preferred shares of a certain type to participate in the General Meeting of General Meetings terminates from the moment of payment of all accumulated dividends on these shares in full.

Often, organizations when carrying out financial and economic activities are free cash invest in securities (including shares) of other enterprises. This type of investment refers to financial investments (clause 3 of the Accounting Regulations “Accounting financial investments» PBU 19/02, approved by Order of the Ministry of Finance of the Russian Federation dated December 10, 2003 N 126n).

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Filimoshin P.M. Advisor to the Department for Regulation of Issue and Circulation of Equity Securities of the Federal Commission for the Securities Market of Russia http://www.profconsalt.ru

The legislation of the Russian Federation on securities does not contain a definition of conversion. The author considers it possible to define conversion as the acquisition of ownership rights to placed securities through the alienation of ownership rights to previously placed securities.

From this definition it follows that only persons who, prior to its implementation, have ownership rights to already placed securities can take part in the conversion.

It may seem that conversion is a special case of placing securities through a private subscription, in which payment for securities is made in non-monetary means - other securities. However, this assumption is erroneous. The fundamental difference between conversion is that this method of placement is accompanied by the cancellation (redemption) of the securities “transferred as payment” for the securities being placed. Moreover, the cancellation (redemption) of “old” previously placed securities occurs on the basis and at the time of placement of “new” securities. Thus, the owner loses ownership rights to the “old” securities, acquiring similar rights to the “new” securities being placed, but the “old” securities do not acquire a new owner.

This means that during conversion, a joint stock company - unlike a subscription - does not attract funds as a result of issuing securities, and the owners of securities do not pay for them upon placement and are not, in this sense, investors in the joint stock company.

The legislation of the Russian Federation on securities contains various ways of implementing joint stock company placement of their securities through conversion. Here is a classification (Author's Classification) of the types and types of securities conversion.

In general, conversion can be divided into the following types:

• conversion of shares into shares with a higher par value;
• conversion of shares into shares with a lower par value;
• conversion of shares into shares with other rights;
• conversion of bonds into shares;
• converting bonds into bonds;
• conversion of securities during the reorganization of commercial organizations (Conversion of securities during the reorganization of commercial organizations is regulated by the Standards for the issue of shares and bonds and their prospectuses during the reorganization of commercial organizations, approved by Resolution of the Federal Commission for the Securities Market of Russia dated November 11, 1998 No. 48.

Conversion of common shares into preferred shares of any type is prohibited.

In addition, the legislation of the Russian Federation on securities does not provide for the possibility of converting shares into bonds, which in fact also means that such conversion is prohibited.

Conversion of shares into shares with a higher or lower par value can be carried out both with a change in the size of the authorized capital of the joint-stock company, and without such a change.

When converting shares into shares with different rights, it is necessary to distinguish between the conversion of preferred shares of a certain type into preferred shares with a different amount of rights but of the same type, and the conversion of preferred convertible shares a certain type into ordinary shares or preferred shares of another type (conversion as the exercise of rights under a security).

Thus, the proposed classification of conversion types needs additional detail. But, before moving on to such detail, we classify these types according to conversion periods.

Depending on the timing of the conversion, there are one-time And not a one-time(deferred or extended in time (Author's terminology)) conversion.

At one-time conversion in accordance with clause 11.1 of the Standards (Standards for the issue of shares upon the establishment of joint stock companies, additional shares, bonds and their prospectuses, approved by Resolution of the Federal Securities Commission of Russia dated September 17, 1996 No. 19 (as amended by Resolution of the Federal Commission for the Securities Market of Russia dated November 11, 1998 No. 47)) Federal Securities Commission of Russia placement of shares of a joint-stock company (bonds do not take part in a one-time conversion) through conversion must be carried out on one day, which cannot be earlier than the date state registration issue of shares and later than one month from the specified date, according to the register of owners of registered securities of this joint-stock company on the day of conversion.

The mentioned paragraph of the Standards provides for one exception: in the case of conversion of shares into shares with a higher par value, accompanied by an increase in the authorized capital of the joint-stock company at the expense of profits based on the results previous year aimed at paying dividends, the specified conversion must be carried out among shareholders included in accordance with paragraph 4 of Article 42 of the Federal Law “On Joint Stock Companies” in the list of persons entitled to receive dividends for this year. However, such conversion also cannot be carried out earlier than the date of state registration of the issue of shares and later than one month from the specified date.

At not one-time(deferred or extended in time) conversion in accordance with the same clause 11.1 of the Standards, the placement of shares or bonds of a joint-stock company by converting the securities converted into them must also be carried out on one day, which cannot be earlier than the date of state registration of the issue of such shares or bonds and later than one year from the date of approval by the joint-stock company of the decision on their issue, according to the register of owners of registered securities of this joint-stock company on that day.

To others fundamental difference deferred conversion is the need for the mandatory presence in the charter of a joint stock company of declared shares of a certain category (of a certain type), only within the limits of the number of which shares of this category (of this type) can be placed by converting the securities convertible into them.

Having defined two fundamentally different types of conversion, we present the final classification scheme conversion methods:

I. One-time conversion:

• conversion of shares into shares with a higher par value, accompanied by an increase in the authorized capital of the joint-stock company;
• conversion of shares into shares with a higher par value upon their consolidation;
• conversion of shares into shares with a higher par value without increasing the size of the authorized capital of the joint-stock company;
• conversion of shares into shares with a lower par value, accompanied by a decrease in the authorized capital of the joint-stock company;
• conversion of shares into shares with a lower par value, not accompanied by a decrease in the size of the authorized capital of the joint-stock company (split of shares);
• conversion of preferred shares of a certain type into preferred shares with other rights of the same type;

II. Non-one-time conversion:

• conversion of a particular type of convertible preferred stock into common stock or another type of preferred stock;
• conversion of convertible bonds into common shares or preferred shares of a certain type;
• conversion of convertible bonds of a certain series into bonds of another series.

Article 28 of the Federal Law “On Joint-Stock Companies” (Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”) refers to the adoption of a decision to increase the authorized capital of a joint-stock company by increasing the par value of shares (decision on the placement of securities) to the competence of the general meeting of shareholders or the board of directors of a joint-stock company if the right to make such a decision is granted to the latter by the charter of the joint-stock company or by a decision of the general meeting of shareholders.

In accordance with clause 6.7 of the Standards, an increase in the authorized capital of a joint-stock company by increasing the par value of shares is possible only through:

• funds received by the joint-stock company from the sale of its shares in excess of their nominal value (share premium);
• balances of special purpose funds (accumulation fund, consumption fund, social sphere) joint stock company based on the results of the previous year;
• retained earnings of a joint stock company;
• funds from the revaluation of fixed assets of the joint-stock company.

An increase in the nominal value of shares, not accompanied by an increase in the authorized capital of the joint-stock company

Clause 3 of Article 72 of the Federal Law “On Joint-Stock Companies” provides for the possibility of converting shares of a joint-stock company into shares with a higher par value without changing the size of the authorized capital of the joint-stock company by decision of its general meeting of shareholders, but only at the expense of shares previously acquired by the joint-stock company.

In accordance with clause 6.8 of the Standards, an increase in the par value of shares due to the redemption of shares while maintaining the size of the authorized capital is carried out if there are unrealized shares on the balance sheet of the joint-stock company acquired from shareholders by decision of the board of directors of the joint-stock company in accordance with paragraph 2 of Article 72 of the Federal Law "On joint stock companies."

Consolidation is also a case of converting shares into shares with a higher par value without changing the size of the authorized capital of the joint stock company.

In accordance with paragraph 1 of Article 74 of the Federal Law “On Joint-Stock Companies,” a decision on the consolidation of the outstanding shares of a joint-stock company (i.e., a decision on the placement of securities during consolidation) can only be made by the general meeting of shareholders of this joint-stock company.

During consolidation, two or more outstanding shares of a joint stock company are converted into one new share of the same category (type). nominal cost new promotion is formed by summing the par values ​​of two or more previously placed shares of the joint-stock company converted into it.

Obviously, during consolidation, a situation is possible when shareholders - owners of shares of a joint-stock company have fewer shares than necessary for consolidation. In this case, the Federal Law “On Joint-Stock Companies” provides that such shares must be purchased by the joint-stock company, and at the market value determined in accordance with Article 77 of the said Federal Law by the board of directors of the joint-stock company with the mandatory involvement of an independent appraiser (auditor). At the same time, the Federal Law “On Joint-Stock Companies” does not provide for any exceptions to the above norm, and, thus, the repurchase of these shares must be carried out even if their owners refuse to present demands to the joint-stock company for the repurchase of their securities.

Taking this circumstance into account, the consolidation procedure is often used for the purpose of cutting off (forcing to withdraw from participation in a joint stock company) small shareholders.

To avoid the negative consequences of consolidation, shareholders who own a number of shares insufficient for their consolidation, as well as owners of such a number of shares, upon consolidation of which fractional parts (remainders) of a new (consolidated) share are formed, can be recommended to register in accordance with Chapter 16 of the Civil Code of the Russian Federation such shares are jointly owned jointly with other shareholders in a similar position. Moreover, joint shared ownership for these shares must be registered before the moment of consolidation - conversion, which is carried out according to the register of owners of registered securities of the joint-stock company on the day of conversion established in the registered decision on the issue of securities.

In accordance with Article 29 of the Federal Law “On Joint-Stock Companies,” a decision to reduce the authorized capital of a joint-stock company by reducing the par value of shares (decision to place securities) can only be made by the general meeting of shareholders of this joint-stock company.

At the same time, according to paragraph 1 of this article, a joint-stock company does not have the right to reduce its authorized capital if, as a result, its size becomes less than the minimum authorized capital of the joint-stock company, determined in accordance with Article 26 of the Federal Law “On Joint-Stock Companies”.

In addition, in accordance with Article 30 of the Federal Law “On Joint-Stock Companies,” if a joint-stock company makes a decision to reduce its authorized capital, it is obliged to notify its creditors in writing no later than 30 days from the date of adoption of this decision. Creditors have the right, no later than 30 days from the date of sending them the specified notice of reduction of the authorized capital of the joint-stock company, to demand from the latter the termination or early fulfillment of its obligations and compensation for related losses.

A stock split is a case of converting shares into shares with a lower par value without changing the size of the authorized capital of the joint stock company.

In accordance with paragraph 2 of Article 74 of the Federal Law “On Joint-Stock Companies,” a decision on splitting the outstanding shares of a joint-stock company (i.e., a decision on the placement of securities during splitting) can only be made by the general meeting of shareholders of this joint-stock company.

During a split, one outstanding share is converted into two or more outstanding (new) shares of the joint stock company of the same category (type). The par value of each new share is determined by dividing the previously issued share by the number of new shares into which it is converted during the stock split.

The economic meaning of stock splitting often lies in the desire of the joint stock company to revive secondary market their securities. Obviously, shares with a lower par value may be available for purchase by a larger number of people.

In accordance with paragraph 2 of Article 25 of the Federal Law “On Joint-Stock Companies,” a joint-stock company has the right to place ordinary shares, as well as one or more types of preferred shares. At the same time, each category (each type) of shares of a joint-stock company corresponds to a certain, differing volume of rights secured by them.

In accordance with Article 2 of the Federal Law “On the Securities Market” (Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”), a set of securities of one issuer that provides the same scope of rights to their owners constitutes an issue of securities papers

Therefore, in order to change the scope of rights on already placed shares, a joint stock company must issue (issue) securities with different rights.

This type of security, such as a share, secures the rights of its owner (shareholder) to:

• receiving part of the profit of the joint-stock company in the form of dividends;
• participation in the management of a joint stock company; And
• part of the property remaining after the liquidation of a joint stock company.

It is obvious that changing these rights for ordinary shares of a joint stock company is impossible. Therefore, when we talk about a change in the scope of rights under shares, this should be understood as a change in the scope of rights exclusively on preferred shares, and exclusively within the framework established by the Federal Law “On Joint-Stock Companies”.

It should be taken into account that preferred shares can be converted into ordinary shares or preferred shares of another type only if the possibility of such conversion is included in the rights to these preferred shares. Otherwise, we can only talk about converting preferred shares of a certain type into preferred shares with a modified scope of rights but of the same type. This means, for example, that in order to convert preferred shares into ordinary shares, if the possibility of such conversion is not provided for by the rights on these preferred shares, the joint stock company must issue preferred shares of the same type with a modified scope of rights, placing them by converting preferred shares, not providing for the possibility of their conversion into ordinary shares, into preferred shares, providing for the possibility of such conversion.

Conversion of securities convertible into shares or bonds represents the realization (exercise) of the rights secured by the convertible securities.

In accordance with Article 18 of the Federal Law “On the Securities Market”, a document certifying the rights secured by a security is a certificate and a decision on the issue of securities, and for the uncertificated form of issuing securities - only the decision on the issue of securities. It is obvious that the right (possibility) of conversion in this case, as well as the remaining rights for each security of the issue, must be contained in the decision on the issue of securities, which in turn is approved by the joint-stock company on the basis and in accordance with the decision on the placement of securities .

It follows from the foregoing that conversion as the exercise of rights under convertible securities is possible only if this is provided for by the decision on the placement of such convertible securities, as provided for in clause 6.3 of the Standards.

The decision on the placement of convertible securities must also clearly define the procedure and conditions for the conversion of securities, including the number of securities into which each convertible security of the joint-stock company is converted.

At the same time, in accordance with paragraph 6.4 of the Standards, next condition: The par value of a share(s) of a certain category (of a certain type) convertible into a share(s) of another category (of a different type) must be equal to the par value of the share(s) into which it is converted.

This means that when converting convertible securities there should not be a change in the size of the authorized capital of the joint-stock company. Please note that this restriction does not apply to bonds of a joint stock company.

The conversion procedure established in the decision on the placement of securities may provide that the conversion is carried out:

• at the request of their owners; or
• upon the arrival of a period determined by a calendar date or the expiration of a period of time.

Conversion, carried out at the request of the owners of convertible securities, is used by joint-stock companies, as a rule, if the rights under convertible securities give their owners the right to choose:

A) convert preferred shares of a certain type into ordinary or preferred shares of another type; convert bonds of a certain series into ordinary or preferred shares of a certain type, or bonds of a different series; or

b) refuse such conversion, preferring to retain ownership of preferred convertible shares of a certain type in order, for example, to receive a certain amount of dividend on them, or to redeem convertible bonds in another way (if such a method is provided for by the decision to issue such convertible bonds).

The option may also include allowing holders of convertible securities the option of converting them into different types of preferred stock or different series of notes.

In this case, in accordance with clauses 6.4 and 11.15 of the Standards, the placement of securities must be carried out on the basis of statements from the owners of the securities convertible into them, and the decision on the placement of convertible securities, as well as the decision on the placement of securities placed by converting the convertible into them securities, a period must be established during which the owners of convertible securities can submit the relevant applications, as well as the period during which the conversion must be carried out on the basis of such statements, taking into account that the latter cannot be more than one year from the date of approval of the decision on the issue of securities placed by converting the securities convertible into them. In this case, no agreements are required.

Note that the conclusion of any agreements is not required in other cases of conversion.

If the conversion is carried out upon the arrival of a period determined by a calendar date, or the expiration of a period of time (i.e. without providing the owners of convertible securities with the right to choose), in accordance with clause 11.1 of the Standards, it (conversion) must be carried out on the day specified calendar date, or on the expiration date of a period defined by a period of time, according to the register of holders of convertible securities on that day. The date corresponding to the specified day must also not be later than one year from the date of approval of the decision on the issue of securities placed by converting the securities convertible into them.

We also note that the description in the decision on the issue of securities placed by converting the securities convertible into them, the rights under these securities, the procedure and conditions of conversion must correspond to such a description in the decision on the issue of the securities convertible into them.

In accordance with clause 8.1.3 of the Standards, state registration of the issue of securities must be accompanied by registration of their prospectus for the following types of conversion:

• conversion of shares into shares with a higher par value, including during consolidation;
• conversion of shares into shares with a lower par value, including during splitting;
• conversion of shares into shares with other rights;
• if the number of purchasers of shares in the issue exceeds 500 and (or) the nominal value of the issue (volume of issue) of shares exceeds 50 thousand minimum sizes wages.

Thus, when converting securities convertible into shares or bonds (exercising rights under convertible securities), registration of a securities prospectus is not required.

In the event that, during conversion, registration of a securities prospectus is not required, the Standards, paragraph 9.8, as well as in the case of a closed subscription, establish the need to submit for state registration of the issue of securities the accounting statements of the issuing joint stock company for the last financial year and for the last quarter preceding date of approval of the decision to issue securities.

In accordance with clauses 12.3 - 12.4 of the Standards, documents for registering a report on the results of the issue of securities placed by conversion must be submitted:

• in the case of a one-time conversion - no later than 30 days from the date of conversion;
• in the case of a non-one-time conversion - no later than 30 days from the end date of the conversion period.

Considering that in case of a one-time conversion, the date of placement of securities (conversion date) cannot be later than one month from the date of state registration of the issue of securities, documents for registering a report on the results of the issue of securities in case of a one-time conversion, therefore, must be submitted no later than two months from the date of state registration of the issue of securities.

Clause 12.8 of the Standards also requires the submission for registration of a report on the results of the issue of securities placed through conversion, and a notice of cancellation of converted securities.

The legislation of the Russian Federation on securities and the regulations of the Federal Commission for the Securities Market of Russia do not contain special requirements on disclosure of information on the issue of securities placed through conversion. Therefore, for the purpose of disclosing information when converting securities, a joint stock company must be guided by general standards and the rules of information disclosure contained in the Regulations on the procedure for disclosing information about material facts (events and actions) affecting financially - economic activity issuer of issue-grade securities, approved by Resolution of the Federal Commission for the Securities Market of Russia dated August 12, 1998 No. 32, which, however, applies only to those joint-stock companies whose state registration of at least one issue of securities was accompanied by the registration of their prospectus.

In accordance with these Regulations, information is disclosed by joint-stock companies in the form of reports on material facts (events and actions) affecting their financial and economic activities, which, no later than 5 working days from the date of occurrence of the material fact, must be:

sent to the registration authority (for non-credit and non-insurance organizations - the Federal Commission for the Securities Market of Russia or its regional branches);

published in the “Supplement to the Bulletin of the Federal Securities Commission of Russia” (Subscription index according to the catalog of the Rospechat agency - 47998) and other print media distributed in a circulation accessible to the majority of holders of securities of the joint-stock company.

The following information is subject to disclosure:

• on the joint stock company’s decision to place securities;
• on approval by the joint-stock company of the decision to issue securities;
• on redemption, including cancellation of securities.

The first two cases were discussed in detail in articles on open and closed subscriptions, so in this article we will dwell in detail only on the disclosure of information on the redemption (cancellation) of securities.

The notice of cancellation by the joint stock company of securities upon conversion must indicate:

• grounds for cancellation: conversion, redemption of bonds;
• type, category (type), form, series, state registration number of the issue whose securities are canceled (redeemed);
• the nominal value of each security of a given type (category), series, the number of securities of a given type (category), series;
• number of canceled (redeemed) securities;
• in case of redemption (including early) of bonds:

  a) term (start date, end date) of circulation of redeemed bonds;

  b) the procedure, conditions, term (start date and end date) of early redemption of bonds (if early repayment provided for by the decision on the issue of bonds);

  c) the procedure, conditions, term (start date and end date) of redemption of bonds.

The moment of occurrence of the fact is considered to be the date of conversion (or the end date of conversion), the date (end date) of redemption of bonds.

Sending to the registration authority the specified message about the cancellation (redemption) of securities can also serve as a notification to the registration authority about the cancellation of securities, submitted in accordance with clause 12.8 of the Standards for registering a report on the results of the issue of securities placed by conversion.

Conclusion

In conclusion, we present a table showing the order and timing of the joint-stock company’s actions to place securities through conversion.

Table 1.

Sequence and timing of actions to issue securities placed by conversion