Additional share issues are made. Issuance of shares: what is it? Decision to issue additional shares

state registration of an issue (additional issue) of securities or assignment of an identification number to an issue (additional issue) of securities;

placement of securities;

state registration of a report on the results of an issue (additional issue) of securities or submission of a notice of the results of an issue (additional issue) of securities.

1.2. Securities, the issue (additional issue) of which has not passed the state registration, cannot be placed, except for the following cases:

placement of shares when establishing a joint-stock company;

placement of securities during the reorganization of joint-stock companies in the form of division or spin-off, carried out simultaneously with a merger or accession, in which the placement of securities of joint-stock companies created as a result of division or spin-off is carried out without state registration of the issue of securities and a report on the results of the issue of securities ;

placements by open subscription of bonds without collateral, in respect of which the conditions established by paragraph 1 of Article 27.5-2 of the Federal Law "On the Securities Market" are simultaneously met (hereinafter referred to as exchange-traded bonds);

placement by closed subscription of bonds without collateral, in respect of which the conditions established by subparagraphs 3 - 5 of paragraph 1 of Article 27.5-2 of the Federal Law "On the Securities Market" are simultaneously met (hereinafter referred to as commercial bonds);

placement of Russian depository receipts, in respect of which the conditions specified in paragraph 5.1 of Article 27.5-3 are simultaneously met

1.3. State registration of an issue (additional issue) of securities may be accompanied by registration of a securities prospectus, and in the case of placement of securities by subscription, it must be accompanied by registration of a securities prospectus, unless at least one of the following conditions is met:

in accordance with the terms of placement of securities, they are placed by persons who are qualified investors, provided that the number of persons who can exercise the pre-emptive right to acquire such securities, excluding persons who are qualified investors, does not exceed 500;

in accordance with the terms of placement of shares and (or) securities convertible into shares, they are placed to persons who, as of a certain date, were or are shareholders of the joint-stock company - issuer, provided that the number of such persons, excluding persons who are qualified investors, does not exceeds 500;

in accordance with the terms of placement of securities, they are offered to persons whose number does not exceed 150, excluding persons who are qualified investors, as well as excluding persons who, as of a certain date, were or are participants (shareholders) of the issuer, provided that the number of such participants (shareholders) who are not qualified investors does not exceed 500;

in accordance with the terms of placement of securities, they are placed by closed subscription among persons, the number of which, excluding persons who are qualified investors, does not exceed 500;

the amount of funds raised by the issuer through the placement of securities of one or more issues (additional issues) within one year does not exceed 200 million rubles;

the amount of funds raised by an issuer that is a credit institution by placing bonds of one or more issues (additional issues) within one year does not exceed four billion rubles;

in accordance with the terms of placement of securities, the amount of money contributed by each of the potential purchasers, with the exception of persons exercising the pre-emptive right to acquire the relevant securities, is at least four million rubles, provided that the number of persons who can exercise the pre-emptive right the right to purchase such securities, excluding persons who are qualified investors, does not exceed 500;

in the case of state registration of a separate issue (additional issue) of bonds placed under the bond program, if the bond prospectus is registered simultaneously with the state registration of the bond program.

1.4. If state registration two or more issues (additional issues) of securities of one issuer are carried out simultaneously, in relation to the securities of such issues (additional issues) one securities prospectus may be prepared.

1.5. If securities are placed by open subscription or the procedure for issuing securities is accompanied by the registration of a securities prospectus, the issuer is obliged to disclose information on the issue (additional issue) of securities in accordance with Article 30 of the Federal Law "On the Securities Market".

1.6. If, in accordance with these Regulations, the issuer submits to the Bank of Russia (hereinafter referred to as the registering authority) any document (documents), such document is submitted (such documents are provided) to the registering authority on paper. If the paper carrier of the document has more than one sheet, it must be numbered, stitched, sealed with the issuer's seal on the firmware and certified by the signature of the issuer's authorized person. Erasures and blots in the text of documents submitted on paper are not allowed.

(see text in previous edition)

The accuracy of copies of documents submitted in accordance with this Regulation to the registration authority on paper must be confirmed by the seal of the issuer and the signature of his authorized person, unless another form of assurance is established by regulatory legal acts. Russian Federation.

In the cases provided for by this Regulation, the texts of documents are submitted to the registering authority also on electronic media and in a format that meets the requirements of the registering authority.

1.7. In cases where, in accordance with these Regulations, the issuer submits a copy of any document to the registering authority, it has the right to submit the original of such document to the registering authority instead of a copy.

(see text in previous edition)

1.9. The documents provided for by this Regulation may be submitted to the registration authority in electronic form (in the form of electronic documents), signed (signed) with an electronic signature in accordance with the requirements of the Federal Law of April 6, 2011 N 63-FZ "On electronic signature"(Collected Legislation of the Russian Federation, 2011, N 15, Art. 2036; N 27, Art. 3880; 2012, N 29, Art. 3988; 2013, N 14, Art. 1668; N 27, Art. 3463, Art. 3477; 2014, N 26, article 3390.) These documents in electronic form (electronic documents) are recognized as equivalent to documents signed with a handwritten signature and presented on paper.

1.10. The terms established by these Regulations are calculated from the day following the day of receipt of the relevant documents by the registering authority, and if the indicated periods are established by these Regulations for issuing (sending) notifications based on the results of consideration of documents received by the registering authority - from the day following the day of acceptance by the registering authority body of the relevant decision based on the results of consideration of such documents. If the last day of the period established by these Regulations falls on a non-working day, the expiration day of the specified period is the next business day following it.

1.11. In the event that, in accordance with this Regulation, it is required to submit a document confirming the fact of payment of the state fee levied in accordance with the legislation of the Russian Federation on taxes and fees for the commission of a legally significant action by the registering authority, and the registering authority does not have reliable information about the payment by the applicant (issuer) the specified state fee in accordance with the established procedure, the documents submitted by the applicant (issuer) are left without consideration. In this case, the registering authority is obliged, within seven working days from the date of receipt of the documents submitted by the applicant (issuer), to send him a notification indicating the need to submit a document confirming the fact of payment of the state fee, and within the time limits established by this Regulation for consideration of the documents submitted by the applicant (issuer) documents, is suspended until the date of receipt by the registering authority of reliable information about the payment of the state fee in the prescribed manner.

1.12. The use of a seal on documents submitted in accordance with this Regulation to the registration authority on paper is mandatory in cases provided for by federal laws, as well as if information about the presence of a seal is contained in the charter (constituent document) of the relevant legal entity.

1.13. If, in accordance with these Regulations, it is required to submit a copy of the minutes (extract from the minutes) of the general meeting of participants in the economic company, and the specified document does not contain information on compliance with the Civil Code of the Russian Federation established by paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation (Collected Legislation of the Russian Federation, 1994, N 32, Article 3301) of the procedure for confirming the decision (decisions) adopted (adopted) by the general meeting of participants in the economic company, and the composition of the persons present at its (their) adoption, together with such a document, a certificate containing information on compliance with the specified procedure should be submitted (another document containing information on compliance with the specified order). At the same time, information on compliance with the specified procedure must include the name of the registrar who performed the functions of the counting commission, or the last name, first name, patronymic (if any) and the title of the position of the notary who certified decision(decisions made), and if the decisions taken by the general meeting of participants in a limited liability company are confirmed in another way - an indication of such a method.

1.14. If in accordance with these Regulations it is required to submit a document (including a copy of the minutes (extract from the minutes) of the general meeting of bondholders) confirming the receipt of the consent of the bondholders in the prescribed manner, and the specified consent of the bondholders cannot be obtained due to the fact that none of the bondholders has the right to vote on the relevant issue, instead of the specified document, a certificate containing the relevant explanations must be submitted.

The issue of shares is the main method of formation or replenishment of the authorized capital of an organization and main source funding used by government agencies and private companies. The issue of shares usually occurs at the very beginning of the formation of a joint-stock company, as the main and even the only method of forming the company's authorized capital. In addition, subsequently, repeated issues are possible, aimed at increasing the capital of the company and financing the development of the enterprise.

Do not confuse the issue of securities and their manufacture. Production of shares means their physical production (in the case of materialized securities), that is, the fact of printing on paper, often protected by watermarks.

The main stages of the issue, stipulated in the legislation, including Russian, are as follows:

• - direct adoption of the initial decision on the implementation of the issue. Such a decision is made at the general meeting of shareholders (regular or extraordinary), or by the Board of Directors. Be careful, according to the Law on Joint Stock Companies, in the event of a decision on the issue by the Board, it is required unanimous decision of all current members.
• - statement. After the decision on the issue of shares is made, the general meeting of shareholders, as the main governing body of the company, must approve the decision and the prospectus for the issue. This stage is mandatory only in a few cases: for an open subscription, when , for a closed subscription for more than 500 subscribers, if the issue amount exceeds 50,000 minimum wages. In all other cases, approval is not required.
• - state registration. Until the immediate issue of shares. It is required to register the decision and the prospectus in the relevant government bodies(FCSM of Russia).
• - placement of shares. Directly the process of transferring ownership rights to the primary shareholders.
• - state registration of the issue results. Mandatory final stage, after which it is possible to make changes to the charter of the company and declare the issue closed and completed. Only after this stage are final financial calculations and balance entries made.

The main purpose of issuing shares is, of course, the formation or increase of the authorized capital. First of all, the issue of shares stands at the origins of the formation of the company. Subsequent decisions on the re-issue of securities can be made for the purpose of additional financing of the joint-stock company, in cases where the development of the company is limited by a lack of own funds and the impossibility of increasing income without additional financial injections.

2 Issue of preferred shares, additional issue of shares and other forms of issue

Exist different kinds issue of shares. Issues are distinguished by the type of shares issued and, in other words, by serial number. It is known that there are different types of shares, ordinary. Convertible, preferred and others. And any types of securities are issued in no other way than through the issuance, with mandatory conditions and rules for each type of securities.

For example, in the legislation of the Russian Federation there is a restriction on the issue of preferred shares - their total volume and par value should not exceed more than 25% of the authorized capital (after its increase as a result of the issue). Exceeding this threshold is considered a violation and is punishable by criminal law.

Issues are also primary and additional. Additional issue of JSC shares is carried out in case of need for additional financing from external sources. As a rule, additional issues of securities are practiced to replenish the authorized capital to the level established by law. Most often, banks, insurance companies and others resort to such a tool. financial institutions, whose activities are strictly regulated by law, and in relation to which legislative norms for increasing capital are applied from time to time, not due to real economic necessity. Simply put, a commercial bank often re-issues securities not because of the desire of shareholders to receive additional funding for the development of the company or to bring it out of the crisis, but because the state has once again decided to centrally oblige all banks to increase the authorized capital to a certain level. All stages of securities issuance commercial banks are clearly specified and described in the Instruction of the Central Bank of the Russian Federation “On the Rules for the Issuance and Registration of Securities by Credit Institutions in the Territory of the Russian Federation”, valid both for local resident banks and for foreign companies wishing to open a branch or representative office in Russia.

Any of the above methods of issuing new securities of the company is strictly regulated by the laws of the country and has certain features. The above example of preferred shares is just one of the restrictions imposed by law to protect shareholders from deliberate violation of their rights. So, for example, a decision on an additional issue of securities can be made exclusively by disinterested persons. This category includes those shareholders who do not have a significant block of shares and cannot influence the activities of the company alone. Simply put, if the issue of shares by a joint-stock company was carried out as a result of the sole decision of the majority shareholder, while the minority shareholders were against this decision, such an issue is considered illegal and cannot be registered with state bodies and, accordingly, carried out.

3 Investment risks of an additional issue and examples of violation of the rights of shareholders and a decrease in the value of an investment

I continue the topic of manipulations possible with respect to minority shareholders through the re-issue of shares, it is worth dwelling in more detail on the types of share prices and, accordingly, the investment value of this financial instrument. One of the investment profitability factors is the initial price of an investment instrument, in this case, shares, and the dynamics of changes in its value depending on various factors (including subsequent issues of a particular company in whose shares you invested earlier).

So, securities have different prices:

• - issue price of shares, this is, in fact, the nominal value at which the security is first released to the market and acquired by the first shareholder. This price is indicated in the prospectus and on the share itself (in the case of an issue of materialized securities) and constitutes the initial price at which the share is acquired in the primary market. The issue price of a share is a certain value, which is usually calculated based on the book value of the company's assets, as it expresses the share of these assets.
• - market value of securities. It is about the price at which stocks and bonds are bought and sold in the secondary market. The market price is not an exact constant value and may change depending on many factors, such as the success of the company and the amount of dividends paid. This value is determined for all subsequent transactions after the initial issue of securities.

Avoid the common misconception that the market price is not equal to the security's return, but is one of the determinants of the latter. The market value also determines the value of all other shares already held by shareholders, that is, the value of their investment.

Thus, each subsequent issue of ordinary shares can affect the market value of all securities of the company and increase or decrease the value of earlier ones. financial investments investors in this company. It is for this reason that a clear legislative regulation of the issuance of securities is necessary, which will protect shareholders from possible speculation and underestimation of the value of their investment.

There are many examples when majority shareholders made decisions to increase the authorized capital or consolidate existing securities, which resulted in a decrease in the share of holders of small blocks of shares or the need to sell them at forcedly low prices. It is to prevent such cases that Russian legislation is constantly undergoing changes in the field of joint-stock law. For example, in the past, when consolidating securities into higher par shares, minority shareholders whose holdings did not allow conversion into higher par shares were forced to sell their shares, often at a disadvantageous price. Today, due to changes made to the law on joint-stock companies and the introduction of the concept of "fractional shares", the mandatory sale in the event of consolidation has been abolished and such a scheme for depreciating investments by minority shareholders no longer works.

4 Methods for calculating the return on investment in shares when they are issued. Shared management options

The above are just a few of the aspects that have a direct impact on the return on investment in securities. It goes without saying that it is almost impossible to independently take into account and calculate absolutely all the factors that can affect the success of such an investment and prevent the loss of your capital. To do this, you need to have a large store of economic knowledge and vast experience in investing in securities - you can’t do without it. In addition, an ordinary person who wants to capitalize on his small savings, the way to the stock market is usually booked because of the high price of initial blocks of shares.

However, there is a way out of this situation - trust management. In conditions modern world, in order to profitably invest your savings, it is not necessary to be a master of economics or a trader with many years of experience. It is also not necessary to have large savings. It is enough just to cooperate with the same small investors under the supervision of one managing broker and entrust your funds to a trustee. Thanks to such a combination, one or several large PAMM accounts are formed, which can participate from own name on the stock market, decide on additional issues, and also defend their interests in the management of joint-stock companies in whose securities the funds were invested.

You will no longer be left alone with the big sharks stock market, and will not be completely dependent on the decision of the majority shareholders of the company. Trust management will make it possible to form, out of many small investors, one major player who is able to protect their interests and invest their (and your) capital with the highest return on the market. Of course, this is an optional condition and participation in the issue of securities of a company is also possible on behalf of a private person, but through trust management, investment processes become much simpler, and the income from investments is higher. The decision, in any case, should be made carefully and taking into account all available information.

The additional issue of shares is an integral part of the equity capital management model and is intended to attract equity (debt-free) financing of the company's activities. As noted above, this method of raising funds is expedient in strictly defined cases, the common point of which is the excess of the actual share price over the book price. The purpose of the additional issue should also be subject to strict revision: as a rule, it is carried out to replenish the non-current assets of the company associated with the implementation of new, cost-effective projects. To replenish working capital, borrowed capital sources look more preferable.

In terms of the type of additional issue legislation allows two options for subscribing to equity securities: open And closed. The issue of limiting the circle of persons - potential purchasers of the issue-grade securities of the company - is debatable. By itself, the presence of restrictions on the circle of acquirers does not indicate an immediate deterioration in the company's corporate governance. Rather, this is a reason to think about the adequacy of the current or future parameters of the additional issue, and, above all, the placement price. It is believed that it is best to get a proper assessment of the fairness of the parameters of an additional issue in a public environment with an unlimited number of buyers. At the same time, a closed subscription may indicate the desire of the company to hide something or hide something from its shareholders, as well as an excessive desire to see a certain person among the shareholders (in the case of a closed subscription in favor of this person). By itself, the principle of functioning of an open joint-stock company implies the equality of shareholders for the company, that is, the company does not care who exactly becomes its shareholder. The very fact of contributing funds to the authorized (share) capital is important. In this connection best view additional issue in an open joint stock company functioning as a public company, there will be an open subscription. At the same time, all the main parameters of the additional issue, including the placement price, must be known in advance, before the General Meeting of Shareholders, at which it is supposed to raise the issue of holding an additional issue of shares.

Another feature worth paying attention to is the method of payment for issued shares. By general rule payment is made in money, but can be made with other property. In our opinion, the monetary form of payment is preferable, as it removes the risks of inadequate valuation of property contributed as payment for shares. If the company is interested in a particular property, it can, after carrying out an additional issue, redeem it later for cash.

In the context of changing legislation, it is necessary to monitor the timing of implementation priority right. The timeframe should be sufficient to allow current shareholders, including minority shareholders, to make a decision to buy back shares and carry out the necessary technical operations to transfer funds. It is impossible to impose serious restrictions on the accounts from which shares can be paid for, as well as complicate the exercise of the pre-emptive right in other ways (for example, to require the provision of an excessive set of documents). In other words, the key principle in exercising the pre-emptive right by shareholders is the principle of simplicity.

It is also worth paying attention to the norm contained in the emission standards, according to which, after the exercise of the pre-emptive right to the remaining shares, buyers are selected at the will of the issuer. In fact, we are talking about the preference for the issuer of some buyers of shares over others. This circumstance completely discredits the principle of equality of shareholders for the company and "de facto" turns an open subscription to shares into a closed one.

The most important thing when conducting an additional issue is placement price. According to Article 77 of the Law "On Joint Stock Companies", in the case when the placement price of issuance securities is determined by the decision of the board of directors, it must be determined based on the market value. The Board of Directors may (but is not obliged!) to engage an independent appraiser for the purposes of the additional issue. And it also says that for prices that are regularly published in the press, they must be "taken into account." Thus, when determining the price of an additional issue, the company's board of directors (as people who, by virtue of their positions in society, must have maximum competence in terms of the specifics of managing equity capital) receives carte blanche. It is his opinion regarding the marketability of the price that will be decisive in determining the placement price of shares. However, it must be remembered that the criteria for determining the market price "from below" are the face value of the share (due to the requirements of the law "On Joint Stock Companies"), the book price of the share and the price of the share in the secondary market. The price of the additional issue should exceed the book price of the share and be not much lower than the price of shares in the secondary market. This will prevent blurring of the book price of one share and minimize the impact of the additional offer of shares on the secondary market.

When registering a joint-stock company, the founders, as a rule, form authorized capital created joint stock company in the amount not exceeding the minimum amount of the authorized capital. To date, the minimum authorized capital for non-public joint-stock companies is 10 thousand rubles, for public joint-stock companies 100 thousand rubles. However, in the future, it often becomes necessary to increase the authorized capital.

The joint-stock company is developing and additional cash injections are needed to expand production. An increase in the authorized capital of a joint-stock company is possible in two ways: increase in the nominal value of shares or placement of additional shares (clause 1, article 28 of the Law on Joint Stock Companies). At the same time, in accordance with paragraph 1 of Article 39 of the said Law, the placement of additional shares can be carried out in one of three ways :

— subscription (open or closed);

- conversion;

— distribution among shareholders.

Let us consider the content of corporate events carried out in the course of an additional issue of shares placed by closed subscription, and in the case when the additional issue of shares is not accompanied by state registration of the prospectus for the issue of securities.

Registration of a prospectus of securities is required if the shares are placed by open subscription or by closed subscription among a number of persons whose number exceeds 500. At the same time, more stringent disclosure requirements are provided in order to ensure that potential investors in the securities market receive the necessary information.

Payment for shares of additional issue can be made as in cash, and various property (under an exchange agreement), which must be preliminarily assessed by an independent appraiser. The article will consider the first option for paying for shares.

The process of additional issue of shares includes 5 stages:

1. Making a decision on the placement of issue-grade securities;

2. Approval of the decision on the additional issue of emissive securities;

3. State registration of an additional issue of emissive securities;

4. Placement of equity securities;

5. State registration of a report on the results of an additional issue of emissive securities.

Each stage includes corporate events that must be carried out consistently and within the established deadlines.

1. Making a decision on the placement of issue-grade securities

At this stage, a meeting of the Board of Directors is held, which determines the value of one share and the General Meeting of Shareholders, which decides to increase the authorized capital by issuing additional shares of the company.

If the charter of the company does not contain a provision on authorized shares (that is, it does not provide for the possibility of an additional issue), it is necessary that at this stage the shareholders make a decision to make appropriate changes to the charter (on the number of authorized shares and the rights of shareholders provided by these shares after their placement) (clause 3, article 28 of the Law on Joint Stock Companies). If such a decision was made at the General Meeting of Shareholders, the Joint Stock Company is obliged to register these changes with the Federal Tax Service.

2. Approval of the decision on the additional issue of securities

The Board of Directors approves the decision on the additional issue of shares. If the organization does not have a Board of Directors, the decision is approved by the management body that performs the functions of the Board of Directors. Usually this body is the general meeting of shareholders. Documents for the state registration of an additional issue of securities must be submitted no later than three months from the date of approval of the decision on their issue.

3. State registration of an additional issue of emissive securities

According to the Decree of the President of the Russian Federation of July 25, 2013 N 645, the FFMS of Russia was abolished. Its functions have been transferred to the Bank of Russia.

Thus, the Financial Markets Service of the Bank of Russia performs the functions of the abolished FFMS of Russia, including registering additional share issues.

For state registration of an additional issue of securities, the documents stipulated by the Standards for the issue of securities (approved by the Bank of Russia on August 11, 2014 N 428-P) (hereinafter referred to as the Standards) are submitted to the registering authority.

1) an application for state registration of an additional issue of securities;

2) issuer's questionnaire;

3) a copy of the document confirming the state registration of the issuer;

4) decision on additional issue of securities;

5) Minutes of the Board of Directors on determining the placement price of shares;

6) Minutes of the general meeting of shareholders on the increase in the authorized capital;

7) Minutes of the meeting of the Board of Directors on approval of the decision on the additional issue of securities;

8) a copy of the charter (constituent documents) of the issuer in the current edition with all amendments and (or) additions made to them;

9) payment order (receipt of the established form in the case of cash payment), which confirms the fact of payment by the issuer of the state duty levied in accordance with the legislation of the Russian Federation on taxes and fees for state registration of an additional issue of securities;

11) other documents stipulated by the Standards.

The issuer must submit to the registration authority a set of documents on paper and on electronic media. The decision on the additional issue and the issuer's questionnaire must be filled in in accordance with the Standards and compiled using a special program - an electronic questionnaire, which is freely available on the official websites of the RBU and recorded on electronic media in the form of a questionnaire. Since at the moment the electronic questionnaire does not contain some of the provisions of the new Standards, it is also necessary to place the Decision on the additional issue and the issuer's questionnaire in the .doc or .rtf format with changes taking into account the new provisions on the electronic medium.

Within 20 days from the date of receipt by the registering authority of documents and electronic media, it is obliged to carry out state registration of an additional issue of securities or make a reasoned decision to refuse its state registration

In the process of reviewing documents, the RBU may have comments on the documents. In this case, in the process of registering a decision on an additional issue of securities, a verification of the accuracy of the information contained in the submitted documents may be scheduled, or the state registration of a decision on an additional issue may be suspended. The suspension period cannot exceed 30 days.

4. Placement of equity securities

The placement of securities by the issuer begins with transactions (conclusion of agreements) aimed at the alienation (sale) of securities of the additional issue to their first owners, in accordance with the terms of the registered decision on the additional issue of securities. The issuer must send a transfer order to the registrar for making appropriate entries in the register of shareholders.

The placement is carried out within the terms stipulated by the registered decision on the additional issue of shares. This period may not exceed one year from the date of state registration of the additional issue of emissive securities.

Also, during the placement process, changes may be made to the registered text of the decision on the additional issue of shares. Such changes are subject to mandatory registration with the SBR.

5. State registration of a report on the results of an additional issue of emissive securities

Not later than 30 days after completion of the placement of issue-grade securities, the issuer is obliged to submit to the Bank of Russia a report on the results of the additional issue of issue-grade securities (Clause 1, Article 25 of the Law on the Securities Market).

For state registration of a report on the results of an additional issue of securities, the following documents are submitted to the registering authority, provided for by the Issue Standards:

1) an application for state registration of a report on the results of an additional issue of securities;

2) a report on the results of an additional issue of securities;

3) a copy (extract from) of the minutes of the meeting (session) of the authorized management body of the issuer (order, instruction or other document of the authorized person), which decided to approve the report on the results of the issue (additional issue) of securities, indicating if this the decision was made by the collegial management body, quorum and voting results for its adoption;

5) certificate of the issuer on its compliance with the requirements for disclosure of information at the stages of state registration of an additional issue of securities;

6) a document confirming the existence of a decision on the preliminary approval of transactions for the placement of securities of the issuer, which is a business entity of strategic importance for ensuring the defense of the country and the security of the state, if such transactions are allowed if there is a specified decision on their preliminary approval;

8) if the issuer refuses to place securities and submits a report on the results of their issue (additional issue) containing information that no securities have been placed, a copy (extract from) of the minutes of the meeting (session) of the authorized management body shall be submitted additionally the issuer (order, order or other document of the authorized person) who made the decision to refuse to place securities, indicating, if this decision is made by the collegial management body, the quorum and the results of voting for its adoption;

9) a payment order (a receipt of the established form in the case of a cash payment), which confirms the fact that the issuer has paid the state duty levied in accordance with the legislation of the Russian Federation on taxes and fees for state registration of a report on the results of an additional issue of securities;

10) inventory of submitted documents;

11) other documents provided for by these Standards.

The issuer submits to the registering body the documents required in accordance with the Standards for state registration of a report on the results of an additional issue of securities, in one copy, except for the report on the results of an issue (additional issue), submitted in triplicate.

The text of the report on the results of the additional issue of securities is submitted to the registration authority also on electronic media and in a format that meets the requirements federal body executive branch for the securities market.

If during the process of placement of securities, as a result, not a single security of the additional issue is placed, or if the decision on the additional issue of securities placed by subscription establishes the share of securities, in case of non-placement of which the additional issue is considered failed, such an additional issue of securities is recognized by the registering authority failed, and its state registration is cancelled.

Registration of a report on an additional issue of securities is carried out within 14 days from the date of submission of documents to the RBU.

In the process of reviewing documents, the RBU may have comments on the documents. In this case, in the process of registering a report on the results of an additional issue of securities, a verification of the accuracy of the information contained in the submitted documents may be scheduled, or the state registration of a report on the results of an additional issue of securities may be suspended. The suspension period cannot exceed 30 days.

After registering the report on the results of the additional issue, the issuer must make the appropriate changes to its founding documents in terms of increasing the size of the authorized capital of the company.

WARNING: Be sure to comply with the disclosure requirements for additional issuance of securities. For non-compliance with disclosure requirements, the fine today ranges from 700,000 to 1,000,000 rubles.

Our company will help you register an additional issue of securities. Registration services for an additional issue of securities include consulting at the stages of issue, preparation of a package of documents, submission of a package of documents to the registration authority and receipt of documents on registration of an additional issue of securities.

When placing additional shares of joint-stock companies, the shares of the owners of these securities may change, therefore this method provokes many litigations, especially at the initiative of the least protected shareholders - minority shareholders. Various avenues of defense are being used, including lawsuits and complaints to regulatory authorities. What violations can become a reason for litigation or even lead to the need to carry out the entire procedure for an additional issue from scratch, says a practicing lawyer.

Under the additional issue of shares, Federal Law No. 208-FZ of December 26, 1995 “On Joint Stock Companies” (hereinafter referred to as the Law on Joint Stock Companies) means all methods of placing shares of joint stock companies that require state registration:

associated with an increase in the authorized capital by paying for additional shares by shareholders and (or) other persons (open or closed subscription);

associated with an increase in the authorized capital at the expense of the company's property - an increase in the nominal value of shares (conversion of shares into shares with a higher nominal value) and the placement of additional shares by distribution among shareholders;

not related to an increase in the authorized capital - additional issues of shares placed by conversion in case of a change in rights, in case of consolidation and splitting. In such cases, the structure of the authorized capital does not change, as well as the shares of shareholders in the authorized capital of the company.

This article will deal with issues related primarily to the placement of additional shares by subscription. Since the shares of shareholders in the authorized capital of the company change, it is with this method of placement that violations of the rights of shareholders are most likely, both at the stage of making a decision to increase the authorized capital by the general meeting of shareholders or the board of directors of the company, and at the stages of placement and payment of additional shares.

Additional issue of shares may lead to a redistribution of corporate control

As a result of a joint-stock company's decision to issue additional shares through subscription, shares are redistributed among shareholders, as a result of which the degree of influence of minority shareholders on the decision-making by the company's management bodies may be significantly reduced. This causes the greatest number of disputes in comparison with other types of share issues (see, for example, Ruling of the Supreme Arbitration Court of the Russian Federation dated December 26, 2013 No. VAS-19016/13 in case No. A27-8268/2012).

Disputes related to other methods of placement, of course, also arise, but much less frequently. In addition, if the dispute concerns the adoption of a decision on an additional issue by the general meeting or the board of directors of the company, then the grounds and procedure for appealing are the same for them.

The grounds for disputes initiated by minority shareholders are usually the following:

the general meeting of shareholders or the meeting of the board of directors was held with violations;

the pre-emptive right of minority shareholders is not observed;

not approved or improperly approved transactions in which there is an interest of the acquirer of additional shares;

there have been violations of the disclosure rules;

the limited circle of purchasers of shares by closed subscription is not properly defined;

the placement price of additional shares has been improperly determined;

articles of association do not provide required amount announced shares.

The decision to place shares can be challenged in court

The most frequent reason for disputes at the initiative of shareholders is the disagreement of the latter with decisions on the placement of additional shares and their conditions adopted by the general meeting of shareholders or the board of directors of a joint-stock company.

It should be noted that the decision to place additional shares through an open subscription can be made by the board of directors of the company in only one case: if the number of additional ordinary shares to be placed does not exceed 25% of the previously placed ordinary shares (clause 4, article 39 of the Law on Joint Stock Companies, see also the decision of the Eighteenth Arbitration Court of Appeal dated April 8, 2014 No. 18AP-1223/14 in case No. A34-3999/2012). In almost all other cases, the decision to place additional shares can only be taken by the general meeting of shareholders.

At the same time, it is obvious that this method of placement is available only to public joint-stock companies, since non-public JSCs are not entitled to place shares and issue-grade securities convertible into shares through an open subscription or otherwise offer them for purchase to an unlimited number of persons (paragraph 2, clause 2 article 39 of the Law on Joint Stock Companies).

Shareholders have the right to appeal in court the decision of the general meeting of shareholders of the company, as well as the board of directors of the company. In particular, a minority shareholder has the right to challenge:

a decision on an additional issue of shares, adopted by the general meeting of shareholders of the company (clause 7, article 49 of the Law on Joint Stock Companies);

a decision on an additional issue of shares made by a collegial management body - the board of directors or the supervisory board (clause 6, article 68 of the Law on Joint Stock Companies).

The law establishes certain conditions, only in the presence of which a shareholder has the right to challenge in court a decision taken by the general meeting or the board of directors (supervisory board). In both cases, these conditions include:

the adoption of the disputed decision in violation of the requirements of the Law on joint-stock companies, other regulatory legal acts or the charter of the company;

violation of the rights and (or) legitimate interests of the company or this shareholder by the decision.

In addition, in order to challenge the decision of the general meeting of shareholders of the company, an additional requirement is established, according to which the shareholder has the right to appeal such a decision if he did not participate in the general meeting of shareholders or voted against its adoption.

The grounds for challenging the decisions of general meetings of shareholders are most often:

improper notification of shareholders about the date, time and place of the meeting, about the issues and wording of agenda items, failure to provide shareholders with information to be provided before the meeting and at the meeting itself in accordance with the requirements of paragraph 3 of Art. 52 of the Law on Joint Stock Companies;

lack of a quorum or incorrect determination of the number of shareholders with the right to vote, both on all issues on the agenda, and for resolving the issue of approving transactions in which there is an interest.

The disagreement of minority shareholders also often causes a decision of the meeting regarding the determination of the placement price of additional shares.

It should be noted that the court has the right to uphold the contested decision if:

the violations committed are not significant;

the decision made did not cause any losses to this shareholder.

In general, in the procedural sense, the disputes under consideration are no different from disputes on the recognition of decisions of general meetings as invalid for any other reason. Judicial practice in this category of cases is very extensive and changes following the legislation, which has undergone significant changes over the past few years. It is worth noting, for example, the introduction by Federal Law No. 99-FZ of 05.05.2014 of a new version of Chapter 4 of Subsection 2 of the Civil Code of the Russian Federation “Legal Entities” (see “Ezh”, 2014, No. 19, p. 12, No. 20, p. 14 ), the new Chapter 9.1 of the Civil Code of the Russian Federation “Decisions of Meetings” (see “Ezh”, 2013, No. 19, p. 7) and amendments and additions to the Law on Joint Stock Companies.

It is worth reporting violations during the additional issue of shares to the Central Bank of the Russian Federation

In addition to violations of a general nature during additional issues, which were mentioned above, minority shareholders can also challenge more specific violations committed already at the stages of the placement of additional shares. For example, when exercising the pre-emptive right to acquire additional shares placed by subscription and (or) when placing additional shares by distribution among shareholders.

All shareholders of the company have a pre-emptive right to purchase additional shares placed by public offering in the amount proportional to the number of shares of this category (type) they own. At the same time, only shareholders who voted against or did not take part in the voting on the placement through a private offering of shares can use the pre-emptive right. The pre-emptive right does not apply in the case of placement of additional shares by closed subscription only among shareholders, if shareholders have the opportunity to purchase an integer number of shares being placed, in proportion to the number of shares they own (clause 1, article 40 of the Law on Joint Stock Companies).

Violations of the rights of shareholders either in terms of exercising the pre-emptive right or in terms of proportional placement of shares can be committed by the issuer already at the stage of placing an additional issue of shares, that is, after the decision to increase the authorized capital and after the registration of the issue of securities by the registering authority (the Central Bank of the Russian Federation). Most often, such violations are expressed in the following:

shareholders are not properly notified about the procedure for exercising their pre-emptive right or proportional distribution of shares;

the terms and procedure for the placement of shares to minority shareholders were not observed;

incorrectly calculated the number of shares that could be acquired by minority shareholders;

there are unreasonable refusals of the issuer to accept applications from shareholders, conclude agreements for the purchase and sale of additional shares, etc.

The listed violations, the list of which is by no means exhaustive, may serve as grounds for minority shareholders to file a lawsuit in court.

It should be noted that in order to restore the rights of minority shareholders at the placement stage, not only lawsuits and applications can be applied, but also appeals (complaints and applications) to the registering body - the Central Bank of the Russian Federation. In this case, it is often the latter method of protection that turns out to be more effective than litigation, or at least faster. But it seems most reasonable to act in parallel, that is, to file a lawsuit and send a complaint to the regulator.

The result of protecting the rights of a minority shareholder may be a refusal to register a report on the results of the issue

Challenging transactions for the acquisition of additional shares as interested party transactions and (or) the procedure for their approval is also a way to protect the rights of a minority shareholder, although the current legislation does not contain a requirement for the mandatory approval of transactions for the acquisition of additional shares, in which there is an interest, at a general meeting of shareholders , where a decision was made to increase the authorized capital (before state registration of the issue of shares and before the start of their placement). Under the terms of the placement of shares, it is not always known whether transactions for the acquisition of additional shares can be qualified as transactions in which there is an interest.

Transactions can also be approved after the state registration of the issue of shares, at the stage of placement, especially since approval by no means always requires the approval of the general meeting of shareholders, in certain cases, approval by the board of directors of the company is sufficient (Article 83 of the Law on Joint Stock Companies).

The next after the placement and the last stage of the issue is the state registration of the report on the results of the issue (additional issue) of emissive securities (subclause 5, clause 1, article 19 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”). If during the placement of additional shares by the registering body, upon the complaint of a shareholder or independently, violations of the conditions for the placement of shares, determined by the registered decision on the additional issue of shares, as well as the requirements of the standards for issuing securities, are revealed, the registering body will have the right to:

refuse to register a report on the results of an additional issue of shares;

conduct an audit of the joint-stock company's compliance with the legislation on the securities market, following which also refuse to register the report.

In case of refusal to register a report on the results of the issue of shares, the additional issue is recognized as failed, and its state registration is canceled (decree of the Nineteenth Arbitration Court of Appeal dated August 22, 2011 No. 19AP-3684/11 in case No. A35-14297 / 2011). In other words, everything returns to its previous state, and if the joint-stock company nevertheless intends to increase its authorized capital, then it will have to go through the entire procedure from the very beginning, having carried out preparations for convening and holding a general meeting of shareholders, registering an additional issue of shares, and so on.

It should be noted that a significant violation of the procedure for issuing shares at all stages, including at the stage of placement of additional shares, is improper disclosure of information, the requirements for which are established by the Regulation of the Bank of Russia dated December 30, 2014 No. emissive securities". Such a violation may, with a high degree of probability, lead to a refusal both to register an additional issue of shares (decision of the Arbitration Court of the Sverdlovsk Region dated January 24, 2012 No. A60-41866/2011) and to register a report on the results of the issue. This is especially true for public joint-stock companies, which are required to disclose information in full.

A two-stage closed subscription is dangerous by diluting blocks of shares

Much less frequently than cases of violation of the procedure for an additional issue of shares by open subscription, there are disputes related to the definition of a limited circle of purchasers of shares by closed subscription.

The decision of the general meeting of shareholders on the placement of shares through a closed subscription must contain data on the circle of persons among whom the placement of shares is supposed to be carried out. Moreover, not only specific individuals and (or) legal entities, but also the categories of such purchasers. In the vast majority of cases, this category is the existing shareholders of the company, but other categories are also possible, for example, employees of a joint-stock company - all or meeting certain criteria (length of service, position, etc.), partners of a joint-stock company (consumers or suppliers, etc.). ) that meet certain criteria, etc.

The most popular way of placement is placement by closed subscription in two stages, if it is provided for by the decision of the general meeting of shareholders and the registered decision on the additional issue of shares (Appeal Ruling of the Supreme Court of the Russian Federation dated November 20, 2014 No. APL14-556).

At the first stage, shares are placed only among existing shareholders when they have the opportunity to purchase a whole number of shares to be placed. At the second stage, shares of the additional issue, not acquired by the shareholders at the first stage, may be acquired by third parties. Other persons may be both shareholders wishing to acquire a larger number of shares, and outsiders.

The second stage is a kind of closed subscription among a specific limited circle of persons for the placement of additional shares that have not been acquired by shareholders. It is these circumstances that cause displeasure of minority shareholders, who believe that in this way their blocks of shares are diluted (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 26, 2011 No. F01-4894/11 in case No. A82-6543 / 2010). Indeed, violations at this stage are quite possible, and most often they are associated with the deliberate non-placement of shares to shareholders in proportion to their shares, violation of the procedure for accepting applications from minority shareholders, etc. case No. A51-11603/200844-328).

With the same two-stage placement method under a closed subscription, however, as with other types of subscription, games with an placement price are especially popular. The law on joint-stock companies establishes that payment for additional shares placed by subscription is carried out at a price that is determined or the procedure for determining which is established by the board of directors (supervisory board) based on their market value, but not lower than the nominal value of the shares (paragraph 2, clause 1 article 36, paragraph 1 part 1 article 77 of the Law on Joint Stock Companies). However, the law, while requiring to be guided by the market price of shares, does not provide for the mandatory involvement of an independent appraiser to determine such a value. In this regard, many litigation arises at the initiative of shareholders who believe that the value of the shares was underestimated and this violated their rights (decision of the Eighteenth Arbitration Court of Appeal dated August 27, 2015 No. 18AP-8749/15 in case No. A07-326 / 2015).