The problem of systematizing the rights of shareholders is not new in Russian legal science. Already in the XIX century. attempts have been made to classify all shareholder rights according to different classification criteria.

IT Tarasov subdivided shareholder rights into two groups: basic and special. He referred to the main rights:

the right to a share of the share capital in the event of liquidation of the company;

the right to a share of profits;

the right to participate in management;

the right to control;

the right to complain, claim and protest.

GF Shershenevich subdivided the rights of shareholders into property rights and the rights of personal participation in the affairs of the enterprise. He attributed the rights of the first group: the right to participate in income and the right to the property of a joint stock partnership.

It is supposed to allocate basic and special rights of shareholders. Fundamental rights are those that are directly related to the status of a shareholder as a person who invests his capital in a company in order to receive income for it, and others aimed at ensuring the implementation of fundamental rights, providing guarantees and ways to protect them. This group includes the right to receive dividends, the right to participate in the management of the company, the right to own a share, etc. The second group includes: the right to enter a shareholder in the register, the right to receive information about the activities of the company, the right to make proposals on the agenda general meeting of shareholders, nomination of candidates to the bodies joint-stock company, the right to make various claims.

Shareholder- this is a person participating in the formation of the authorized capital of a joint-stock company, having obligations (rights of claim) in relation to this joint-stock company, certified by special equity securities - shares that are in his ownership, and registered in the register of shareholders of this joint-stock company.

In the Dictionary of the Russian Language by S.I. Ozhegov, a shareholder is a “capitalist, owner of shares, co-owner of a joint-stock enterprise”, and a share is “a security indicating the contribution of a certain share to a capitalist enterprise, giving its owner the right of ownership and participation in profits” .

The concept of "shareholder" is associated with several elements:

firstly, with participation in the formation of the authorized capital of the joint-stock company;

secondly, with the fixation of the name (name) of the shareholder in a special shareholder list (register);

thirdly, ownership of a share (shares) on the right of ownership.

Federal Law No. 22.04.1996 No. 39 -FZ "On the market valuable papers» in Article 2 defines a share as an issuance security that secures the rights of its owner, a shareholder, to receive part of the profit of a joint-stock company in the form of dividends, to participate in the management of a joint-stock company and to part of the property remaining after its liquidation. Paragraph 1 of Art. 2 of the Law also expressly establishes that the share certifies precisely the obligations of the company's participants in relation to the company.

Thus, the legal nature of the rights of a shareholder is determined by the nature of the legal relations that arise between a participant in a business company and the business company itself in terms of the emergence of a certain amount of obligations (rights of claim) to the company both during its creation and in the process of assigning these rights to another participant or participants. In this regard, the rights of obligations (rights of claim) can be considered as legal basis to build a system of shareholder rights as a member of a business entity.

Now let's look at what shares give, and what rights they give to their owners. Ordinary shares give the owner the right to participate in the management of the joint-stock company by voting at the general meeting of shareholders, the right to receive dividends, the right to receive part of the company's property in the event of its liquidation, but they cannot be converted into preferred shares, bonds and other securities. This right finds its expression in the participation of shareholders in the general meeting of shareholders, as well as in the right of shareholders to be elected to other management and control bodies of the company, if this issue is within the competence of the general meeting of shareholders. This right cannot be limited or temporarily suspended either by decisions of the board of directors or by decisions of other persons or officials of the company. As for the participation of a shareholder in the general meeting, it is a set of actions related to the preparation and holding of the general meeting of shareholders and decision-making, including voting, proposing issues on the agenda, discussing issues put to a vote.

When considering issues included in the agenda of the general meeting of shareholders, one voting share provides its owner with one vote. Fixing this principle, the legislator emphasizes the indivisibility of a share, regardless of whether it belongs to one person or several persons. The only exception is the cumulative voting procedure when electing members of the board of directors, when one voting share provides its owner with as many votes as there are vacancies provided for in this body by the charter, internal documents or by decision of the previous general meeting of shareholders (see clause 4 of article 66 of the Law). However, it should be borne in mind that an ordinary share does not grant voting rights to its owner in the following cases:

if the share owned by the founder of the company is not paid in full (unless otherwise provided by the charter of the company;

if the ownership of the share has passed to the company.

When voting at a general meeting on the approval of a transaction in which there is an interest, the voting shares of shareholders interested in the transaction do not participate in the voting, in accordance with paragraph 4 of Article 83 of the Law. In addition, any shares cannot vote if the general meeting of shareholders considers an issue that is not within its competence or is not included in the agenda of the meeting. Finally, if the charter of the company establishes restrictions on the maximum number of votes granted to one shareholder, then at the general meeting he cannot submit large quantity votes than this maximum number.

Pro preference shares The legislation says a lot, but we want to note the main thing. Preferred shares can be of different types (categories) - this is established by the charter, they give shareholders different rights, each type has its own rights. The most common types (categories) are simple and cumulative.

According to Art. 32 of the Law, preference shares give their holders the right to vote in the following situations:

from the meeting following the annual general meeting shareholders, at which, regardless of the reasons, no decision was made to pay dividends or a decision was made to pay incomplete dividends on preferred shares of a certain type - until the moment of the first payment of dividends on these shares in full size;

cumulative preferred shares of a certain type - starting from the meeting following the annual general meeting of shareholders, at which a decision was to be made on the payment of these shares in full accrued dividends, if such a decision was not made or a decision was made to pay incomplete dividends - until the moment of payment of all dividends accumulated on the specified shares in full.

In the event that a decision is not made on the full payment of dividends based on the results of the first quarter of half a year, nine months to the holders of preferred shares, for which the charter determines the amount of dividends based on the results of the specified periods, the relevant shareholders acquire the right to vote at the general meeting of shareholders, starting from the first meeting to be convened after the expiration of the three-month period established by law for the adoption of an appropriate decision.

In addition, regardless of the fact of payment of dividends, preferred shares provide their owners with the right to vote when deciding on issues of reorganization, liquidation of the company, as well as on the introduction of amendments, additions to the charter of the company that restrict the rights of shareholders - owners of preferred shares of this type, including the case of determining or increasing the amount of the dividend and (or) determining or increasing the liquidation value of the preferred shares of the previous order, as well as providing shareholders - owners of preferred shares of a different type of advantages in the order in which dividends are paid and (or) the liquidation value of shares.

The rights of shareholders related to participation in the general meeting of shareholders are quite numerous, but all of them must be fully observed by the joint-stock company, or, more precisely, by the board of directors or other body responsible for preparing and holding the general meeting of shareholders. So shareholders owning 2% or more voting shares have the right to put issues on the agenda of the annual general meeting of shareholders, as well as nominate their candidates to the Board of Directors, the audit commission and the counting commission of the company, the collegial executive body and the position of the sole executive body, in accordance with Clause 1, Article 53 of the Law. A shareholder owning 10% of the voting shares of the company has the right to demand the convening of an extraordinary general meeting of shareholders, as well as the right to put issues on the agenda of such a meeting, the right to nominate candidates to the management bodies of the companies, and also to convene an extraordinary meeting of shareholders in the absence of a decision or refusal of the board of directors (supervisory board) of the company in convening such a meeting. Shareholders convening an extraordinary meeting on their own acquire the powers of the board of directors (supervisory board) of the company in terms of convening and holding an extraordinary general meeting of shareholders.

The owner of more than 25% of the block of voting shares can block any decision of the general meeting of shareholders, the owner of 50% of the block - to ensure that decisions are made on issues that do not require a qualified majority of votes. The owner of a 75% stake plus one share ensures that the general meeting of shareholders makes any decision (with the exception of an interested party transaction in which he acts as an interested person).

In practice, the share of shares required to exercise the relevant rights is much smaller and depends on the number of shareholders who took part in the meeting. Finally, the owner of a 100% stake has the right to independently make decisions on all issues related to the competence of the general meeting of shareholders, without convening a meeting. With a minimum number of vacancies in the Board of Directors (5 people), it is enough for a shareholder to own 20% of voting shares in order to securely appoint his representative to the Board of Directors. In fact, we can say that such a shareholder has the right to have a representative (or be elected to the Board of Directors).

The right of shareholders to receive dividends, as well as part of the property after the liquidation of the joint-stock company, also depends on what shares the shareholder owns: ordinary or preferred. As you know, profit is financial results economic activity joint-stock company, therefore, any commercial joint-stock company seeks to make a profit and increase it over the planned period. However, the performance indicators and prospects for the further functioning and development of a joint-stock company depend not only on the amount of profit in the current year, but also on its effective distribution in the areas of its activity. One of these areas is the distribution of net profit in the form of dividends to shareholders, i.e. owners of a joint stock company.

The consequence of this is the need to form and optimize the dividend policy, which as a result acts as one of the forms of distribution of the net profit of a joint-stock company.

A variety of theoretical approaches to the formation of dividend policy consider this process from the standpoint of the impact on the market value of the enterprise and the welfare of shareholders. They determine the importance of its formation as a whole, but do not give a clear answer, what is the optimal dividend policy for Russian joint-stock companies. At the same time, over the past fifteen or twenty years, we can say that the initial period of formation of Russian joint-stock companies has already passed. In the context of further consistent development market economy awareness of the importance of forming a dividend policy is an objective necessity for maximizing market value and sustainable development of economic activities of Russian joint-stock companies

So, dividend called part of the net profit of a joint-stock company, subject to distribution among shareholders, attributable to one ordinary or preferred share. Net profit allocated for the payment of dividends is distributed among the shareholders - owners of each category (type) of shares in proportion to the number of shares they own. The receipt of dividends by the owners of ordinary shares of the company depends entirely on the results of the company's activities. The Company cannot guarantee the payment of dividends on ordinary shares and incur unconditional obligations to such shareholders to pay dividends.

Thus, the right to receive a dividend arises from the owner of ordinary shares when a relevant decision on the payment of dividends is made by the general meeting of shareholders. At the same time, the general meeting also determines the amount of dividends to be paid. Dividends are paid from the net profit of the joint-stock company. The net profit of the company is determined according to the data financial statements society. The receipt of dividends by the owners of ordinary shares of the company depends entirely on the results of the company's activities and the availability of profit from such activities.

And yet, the main fundamental advantage that is provided to the owners of preferred shares is that the dividend (or the procedure for calculating it) on preferred shares must be determined in the company's charter. A special fund may be established to pay dividends on preferred shares. The company may provide in the dividend regulation the conditions under which dividends on preferred shares are not paid or are not paid in full. The Company has the right to make decisions (announce) on the payment of dividends based on the results of the first quarter, six months, nine months of the financial year and (or) based on the results of the financial year. The amount of dividends paid to the owner of preferred shares can be determined by the charter of the company in different ways: in a firm sum of money, as a percentage of the nominal value of preferred shares, in the form of the procedure for determining the amount of dividends. Thus, the charter of the company may establish that the unpaid or not fully paid dividend on preferred shares of a certain type, the amount of which is determined in the charter, is accumulated and paid out subsequently (the so-called cumulative preferred shares). The payment and declaration of dividends on ordinary shares depends on the company's net profit.

Thus, we can say that ordinary shares do not have an annual guaranteed income. Unlike preferred shares, the amount of dividends on ordinary shares depends on the decision of the general meeting of shareholders or the board of directors of the company, while the amount of the dividend (or the procedure for determining it) on preferred shares is usually determined in the company's charter. However, the right to receive dividends arises for the holders of preferred shares also in the event of a corresponding decision by the general meeting of shareholders. At the same time, according to paragraph 2 of Art. 32 of the Law, if the amount of dividends is not defined in the charter, then the owners of preferred shares are entitled to receive dividends on an equal basis with the owners of ordinary shares.

First of all, a decision is made on the payment of dividends on preferred shares, the amount of the dividend on which is determined by the charter of the joint-stock company. Then a decision is made on the payment of dividends on ordinary shares and preferred shares, the amount of the dividend on which is not determined (including accumulated dividends on cumulative preferred shares). In Art. 43 of the Law defines an exclusive list of cases when a company is not entitled to make a decision on the payment (announcement) of dividends on shares. In these cases, the demands of shareholders for the payment of dividends cannot be recognized as justified.

At liquidation of a joint stock company both the holders of ordinary shares and the holders of preferred shares are entitled to receive a portion of the value of the property of such a company. It should be noted that the possibility of exercising the right to liquidation value is connected precisely with the liquidation of the company. As for the various options for the reorganization of a legal entity provided for by Russian law, in this case the property of the company being reorganized shall pass to its legal successors.

Of course, the liquidation of a joint-stock company forms a complex legal structure of the actions of its participants and the company itself, aimed at terminating the obligations of the company, its activities and property and, ultimately, at the termination of the existence of the company as a subject of law. According to Art. 23 of the Law, the payment of the liquidation value is carried out secondarily along with the payment of accrued but not paid dividends on preferred shares (after settlements with creditors and payments on shares that must be redeemed for shares that must be redeemed in accordance with the Law. If after all these payments, the company still has some property, then the shareholders - owners of ordinary and preference shares enjoy equal rights to participate in receiving a share of such property. in the third turn.

All shareholders enjoy the right to receive information to one degree or another. Thus, all shareholders have the right to get acquainted with the decisions taken by the general meeting of shareholders and the voting results, as well as get acquainted and receive a copy of the current charter of the company. The requirement of Russian legislation on the disclosure by a joint-stock company of information about its activities is necessary to ensure the interests of shareholders, state and public control over their activities, "transparency" of the activities of a joint-stock company, which is also an indispensable condition for the normal functioning and development of the securities market.

So by law and others regulations the joint-stock company is entrusted with the obligation to maintain, present and provide access to such information for the shareholders of the company. The right of shareholders to receive information about the activities of the company and get acquainted with its accounting books and other documentation is enshrined in the Code as one of the basic rights of participants business companies, including joint-stock companies.

According to paragraph 1 of Art. 91 of the Law, the owner of a 25% stake in voting shares has the right to access documents accounting and minutes of meetings of the collegial executive body. Shareholders - owners of voting shares have the right to receive a large amount of information on the eve of the annual or extraordinary general meetings of shareholders. The composition of such information is named in paragraph 3 of Art. 52 clause 3 of the Law, as well as in clause 3.2-3.5. "Regulations on additional requirements for the procedure for preparing for the convocation and holding of a general meeting of shareholders", approved by Decree of the Federal Commission for the Securities Market of the Russian Federation No. 17 / PS.

Any shareholder-owner of voting shares has the right to demand an extract from the list of persons entitled to participate in the general meeting of shareholders. But the right to familiarize with the list of persons entitled to participate in the general meeting of shareholders is enjoyed only by shareholders owning 1% or more votes on any issue on the agenda of the general meeting. Violation of the requirements of the law regarding the presentation and disclosure of information on the securities market entails administrative and criminal liability. All this is connected with the need to protect the rights of investors and the principle of free circulation of shares of an open joint stock company on the securities market among an unlimited circle of potential investors.

Shareholders owning more than 1% of voting shares have the right to obtain from the register of the holder data from the register on the names (full names) of other owners of shares, the number, category (type) and par value of the securities they own. The right to demand the redemption of shares arises from shareholders owning voting shares, if such shareholders did not take part in the general meeting of shareholders or voted against when resolving issues of reorganization, committing big deal, amendments to the charter that restrict the rights of shareholders (approval of the charter in a new edition).

Each shareholder-owner of shares of certain categories (types), the decision to acquire which has been made, has the right to sell the specified shares, and the company is obliged to purchase them. According to paragraph 4 of Article 72 of the Law, if the total number of shares in respect of which applications for their acquisition by the company have been received exceeds the number of shares that can be acquired by the company, subject to the limitation established by law, the share is acquired from the shareholder in proportion to the stated requirements .

However, in practice, the opportunity to get acquainted with the company's documents is not always provided to shareholders and creditors of the company if the company's management body wants to hide any information about the company's activities. This may well be justified officials company on the basis of Article 67 of the Code, which, declaring the right of a shareholder to receive information about the activities of the company, makes an important reservation “in the established founding documents society in order.

It is also worth noting that a number of additional rights arise for a shareholder when making a decision on the reorganization of a joint-stock company. Each shareholder reorganized company who voted against or did not take part in the voting on the issue of reorganization of the company, must receive shares in each company created as a result of the division, granting the same rights as the shares belonging to him in the company being reorganized in proportion to the number of shares of this company he owns if the decision on reorganization of a company in the form of a spin-off provides for the conversion of shares of the company being reorganized into shares of the company being created or the distribution of shares in the company being created among the shareholders of the company being reorganized. , granted the same rights as the shares belonging to him in the company being reorganized, are proportional to the number of shares of this company belonging to him.

When increasing the authorized capital, in a certain case, shareholders have the right to preferential acquisition of additional shares issued by the company. In particular, such a right arises: when the authorized capital of the company is increased at the expense of its property by placing additional shares. In this case, each shareholder is allocated shares of the same category (type) as the shares he owns, in proportion to the number of shares he owns; when placing additional shares through an open subscription.

In this case, all shareholders have a pre-emptive right to acquire additional shares and issuance securities convertible into shares in the amount proportional to the number of shares of this category (type) they own or when placing additional shares through a closed subscription. In this case, the pre-emptive right does not arise for all shareholders, but only for those who voted against or did not take part in voting on this issue, according to paragraph 1 of article 40 of the Law.

Shareholders have other rights. Thus, in accordance with Article 97 of the Civil Code and Article 2 of the Law, open joint-stock companies have the right to alienate their shares without the consent of other shareholders and the company. At the same time, in an open company, it is not allowed to establish the pre-emptive right of the company or its shareholders to acquire shares alienated by the shareholders of this company, while in a closed joint-stock company, a shareholder, on the contrary, enjoys the pre-emptive right to acquire shares sold by other shareholders of this company at an offer price to a third party in proportion to the number of shares owned by each of them, unless the charter of the company provides for a different procedure for exercising this right.

According to Article 46 of the Law, a shareholder has the right to demand from the holder of the register of shareholders of the company an extract from the register of shareholders confirming his right to shares. The legislation provides for broad shareholders' rights to judicial protection. In particular, the shareholder has the right:

to challenge the decisions taken by the management bodies of the joint-stock company to appeal against a major transaction or an interested party transaction made in violation of the requirements of the current legislation (according to paragraph 6 of article 79 and paragraph 1 of article 84 of the Law);

appeal in court the refusal to buy back shares at the request of a shareholder from making an entry in the register of shareholders of the company (according to paragraph 2 of article 45 of the Law);

file a claim for compensation for damage caused by the issuer to the investor as a result of false or misleading information contained in the said prospectus to file a claim with the court for the obligation of the JSC (registry keeper) to make an appropriate entry if the entry is not made within the established period and the registrant does not sent to the established Art. 45 of the Law notice period indicating the reasons for refusal to enter the register;

demand in court the transfer of the rights and obligations of the buyer in case of violation of the procedure for the assignment of shares in CJSC, etc.

Shareholders owning 1% or more of the placed ordinary shares have the right to file a lawsuit against a member of the board of directors, the sole executive body, a member of the collective executive body, as well as managing organization or to the manager for compensation for losses caused by the company. Shareholders owning 2% or more of voting shares have the right to appeal against the decision of the Board of Directors to refuse to include the issue proposed by it in the agenda of the general meeting of shareholders or candidates for the list of candidates for voting in elections to the relevant body of the company, and as well as evasion of the Board of Directors from making a relevant decision. And the owner of a 10% stake, who applied to the company with a request to hold an extraordinary meeting, has the right to appeal in court the decision of the Board of Directors to refuse to convene an extraordinary general meeting of shareholders.

In addition, shareholders have the right to file a complaint or application to federal agency executive power on the securities market.

6.2. Analysis of a number of legislative norms that came into force on July 01, 2006.

More than 10 years have passed since the adoption of the main Law regulating the activities of joint-stock companies. During this period, numerous problems associated with its use have been identified and eliminated, but some questions remain open. So in recent years in Russia there has been a tendency to increase conflicts and disputes between minority and majority shareholders. The problem of balancing their interests is becoming increasingly important in Russian corporate law. In this area of ​​disequilibrium, an important direction that long time remained not regulated by law, is the regulation of the relationship between the minority shareholder and the majority shareholder in the sale of securities of a joint-stock company.

Most likely, it was in this regard that January 2006 was marked by the adoption of the reformist Federal Law No. 7-FZ dated January 5, 2006 “On Amending the federal law"On joint-stock companies" and some others legislative acts Russian Federation”, which will come into force on July 1, 2006. Innovations directly relate to the regulation of corporate relations on mergers and acquisitions of companies in Russia.

In accordance with this innovation, a new chapter is introduced into the Law, which regulates the process of acquiring large blocks of shares. Instead of Art. 80 "Acquisition of 30 percent or more of the ordinary shares of a company" a new chapter appeared, numbering 10 articles. This rule applies to open joint stock companies, their shareholders, as well as investors intending to purchase shares in an open joint stock company.

According to the innovation of Art. 84.1. of the Law of the Russian Federation "On Joint Stock Companies" for the first time introduces such an institution as a "voluntary offer". A person who intends to acquire more than 30% of the company's shares has the right to send a public offer to the company - a voluntary offer, which must be sent by the company to its shareholders within 15 days, along with recommendations from the board of directors. Note that the legislator characterizes this norm as dispositive, and therefore not mandatory. Board recommendations include:

assessment of the price offered for the shares;

assessment of the plans of the person who submitted the voluntary offer in relation to the company, including its employees.

Separately, it should be noted that in this case, the Investor independently determines the number of shares that he intends to purchase, the price of the shares, as well as in without fail Attach an irrevocable bank guarantee. According to Article 84.1 of the Law, the buyer has the right, but is not obliged to indicate his plans for the company and its employees in the offer. The law does not establish any sanctions against the buyer in case of non-fulfillment of the plans indicated by him (If any were declared). The minimum term for consideration of proposals by a shareholder is 70 days, the maximum is 90 days. The buyer who sent a voluntary offer is not entitled to acquire shares on terms different from this offer before the expiration of the term for its acceptance.

The attractiveness of a voluntary offer for the buyer, in our opinion, is rather doubtful. Perhaps it lies in the fact that the price of shares is set by the buyer and it may be lower than the market price. But the effect here will be achieved only if the shareholders do not know the real market price and agree to sell the shares cheaper. But the negative consequences of submitting a voluntary offer for the buyer, in my opinion, are as many as you like. The buyer is obliged to buy shares at a single price and at same conditions(otherwise only 30% of the shares will be able to vote).

The buyer must wait 70 days for the sellers of the shares to make a decision. In the event of a negative recommendation from the board of directors, the buyer will have to convince the shareholders of the groundlessness of this position. The buyer needs to obtain a bank guarantee.

The buyer must send to the FFMS of Russia a preliminary notification of the intention to send a voluntary offer to the company (according to Article 84.9 of the Law). In this case, as a rule, the submission of a voluntary offer does not relieve the buyer from the obligation to submit a mandatory offer. By purchasing more than 30% of the shares, the buyer is obliged in accordance with Art. 84.2 of the Law within 35 years from the date of making the entry on personal account send a proposal to the company to purchase shares from other shareholders at a price not lower than the market price.

This requirement (according to Article 84.2, clause 8 of the Law) does not apply to cases where the buyer has sent a voluntary offer to purchase all shares in compliance with all requirements for a mandatory offer. Thus, the Law explicitly pointed to the only case where the requirement to send a mandatory offer does not apply to the buyer who sent the voluntary offer, namely: the voluntary offer must be made in respect of all shares.

Such an offer must also comply with the requirements for mandatory offers, i.e. content and does not differ from a mandatory offer. The price of the voluntary offer in this case must not be lower than the market price.

Another drawback of the Law, in our opinion, is that the law does not regulate the situation when the buyer violates the requirements of the Law and does not send shareholders an offer to buy back their shares at market value. If earlier Article 80 of the Law provided that shares acquired in violation of the Law do not vote, now the Law does not directly indicate the legal consequences of acquiring shares without sending a mandatory offer to the company.

The law provides for the non-obligation to conclude an agreement on the repurchase of shares after the acquisition of more than 30% of the shares, but the obligation to send a proposal to conclude such an agreement. Moreover, the obligation of the buyer to conclude an agreement for the repurchase of shares at the request of the shareholder arises from him only by virtue of Art. 84.7 of the Law, when he buys more than 95% of the shares. Accordingly, if the seller evades from sending a mandatory offer, we can talk not about the obligation to conclude an agreement (otherwise, such an obligation should have been explicitly stated in the Law), but about the possibility of filing a claim in Court of Arbitration on compulsion to fulfill the obligation to send a mandatory offer (according to 415 of the Civil Code of the Russian Federation).

However, the following novels of the Law seem to be even more ambiguous. Thus, the Law is supplemented by Art. 84.7 introduces the obligation to repurchase by a person who, as a result of a voluntary offer to purchase all the securities of an open joint-stock company or a mandatory offer, became the owner of more than 95% of the total number of shares of the company owned by other persons, the remaining shares of the open company at the request of their owners. This rule does not oblige shareholders to sell their shares, but although more civilized, it still helps to oust minority shareholders, since it is obviously aimed at concentrating blocks of shares in the hands of one shareholder.

The most controversial, in our opinion, is the article 84.8 introduced into the Law, which introduces the right of a person who has acquired more than 95% of ordinary and preferred shares to redeem shares from shareholders at the request of this person. In fact, this means that the owner of 95% of ordinary shares of an open joint-stock company has the right to buy back shares from other shareholders, regardless of whether they want to sell them. Moreover, Article 84.8 of the Law does not at all provide for the right of a shareholder to challenge the purchase of shares from him, a minority shareholder in court has the right to challenge only the price at which the purchase is made, if he believes that it is understated. In the event that the shareholders do not send their consent to the redemption of shares, the owner of 95% of the ordinary shares of an open joint-stock company shall pay for the shares by transferring Money to the notary's deposit and submits the payment documents to the registrar. At the same time, within 3 years after the submission of documents confirming the payment for securities, the holder of the register of securities owners is obliged to write off the repurchased securities from the personal accounts of their owners (minority shareholders) and credit them to the personal account of the owner of 95% of ordinary shares.

The ability of shareholders to have a significant impact on the activities of the corporation and put forward high demands on management bodies is due to such factors.

1. Shareholders own the very power in AT, which is exercised by participating and voting at a meeting of shareholders and allows them to exercise basic control and regulation of the company's activities.

2. Shareholders are the main investors of a joint stock company.

3. Shareholders have a decisive role in the election of members of the governing bodies of AT.

4. The goals and economic interests of the owners of a joint-stock company, as a rule, are closest to the interests of the enterprise as such.

From the point of view of corporate governance, shareholders are divided into the following main groups (Table 2.1).

Table 2.1

Classification of shareholders in terms of corporate governance

The listed groups of shareholders have the following features.

Shareholders - owners of ordinary shares, as a rule, can participate in the management of a joint-stock company.

The owners of preferred shares have a pre-emptive right to receive dividends and priority in the distribution of property of a joint-stock company in the event of its liquidation. They have the right to take part in the management of a joint stock company only in certain cases, preceded by the Law of Ukraine "On joint stock companies" and the charter of AT.

Individuals who have acquired a small number of shares at certificate auctions have virtually no effect on the activities of the joint-stock company. This is especially true for shareholders who are shareholders of enterprises located outside the residence of the shareholder.

Practice shows that the leading role in corporate governance is played by: AT executives, financial intermediaries, other legal entities and owners of large blocks of shares.

Depending on the degree of influence and interest in the stable operation of AT, it is necessary to distinguish two main groups of shareholders that are of the greatest importance for corporate governance. These are internal shareholders (insiders) and external shareholders (outsiders).

Domestic shareholders - these are shareholders who are employees of AT. The interests of this group of shareholders are rather contradictory. On the one hand, as owners of shares, they are interested in improving the efficiency of the company, on the other hand, working at an enterprise, they are interested in maintaining the number of employees, paying and increasing wages, which, as a rule, is the main source of income for employees, does not always contribute to improving the efficiency of activities.

Internal shareholders are divided, in turn, into two groups: AT managers and other members of the team, whose interests in most cases do not coincide.

AT leaders and associates tend to seek control over the votes of other members labor collective, including through the acquisition of shares. Management can consolidate shareholdings of other members of the labor collective by creating closed joint-stock companies, the shares of which are distributed among members of the labor collective and paid for by shares of an open AT.

The low efficiency of the majority of ATs and, accordingly, the lack of payment of dividends or their payment in small amounts contribute to the advantage of the interests of employees over the interests of owners in internal shareholders.

External shareholders are divided into the following main groups: unrelated (independent) shareholders and related shareholders.

Independent Shareholders- shareholders who are not connected with the activities of AT. These are individuals and legal entities that have acquired shares using various tools privatization from shareholders, as well as shareholders - former employees AT.

Small shareholders- These are individuals or legal entities that have a small block of shares. Influence of small shareholders on corporate governance is insignificant. The importance and necessity of analyzing this group of shareholders is associated with a large number.

Major shareholders- individuals and legal entities that receive blocks of shares in order to establish control over the activities of joint-stock companies.

State as owner corporate rights can play an important role in the formation of management bodies and joint-stock companies, in the work of supervisory boards. However, insufficient legislative regulation of the rights, duties and responsibilities of representatives of the state and supervisory boards, their legal insecurity lead to low efficiency of their activities.

Related shareholders- shareholders who are closely connected with the activities of AT by contractual and other legal relations. They are divided into the following main groups:

Shareholders are financially connected;

Technologically connected shareholders;

Other related shareholders.

In economically developed countries, strong external control, especially from financially connected shareholders, is an important principle of corporate governance.

Shareholders financially connected: shareholders - banks that lend to the issuer; shareholders - owners of bonds of the enterprise. In developed countries, financially connected shareholders actively participate in the management of AT, since they take more risks - unlike other shareholders, they only risk losing their funds invested in shares. They run the risk of losing not only their shares, but also their loans and loans. The level of control over the activities of a joint-stock company by financially connected shareholders is relatively high, since it consists of shareholder and creditor control.

Technologically related shareholders are:

Shareholders - suppliers of raw materials, materials, components, semi-finished products, etc.

Shareholders - buyers of the products of this AT, using it for production purposes. The range of interests of these shareholders is also aimed at long-term cooperation, they, like the financially connected shareholders, are interested in the stable operation and development of AT.

Shareholders in AT have an exclusive role in decision making. It is manifested by voting at the meeting of shareholders. The value of shareholders is the higher, the larger their share in the statutory fund of AT and the more active they are in relation to the activities of AT. Depending on the size of the block of shares owned by shareholders, their participation in corporate relations and corporate governance can be reduced to the following main provisions (Table 2.2). An important element of corporate governance is the shareholding structure. Share ownership structure - this is the ratio between shareholders or groups of shareholders owning blocks of shares of different sizes. If the financial and economic situation of AT is normal, then the shareholders do not need to interfere in the current activities, the selection and placement of specialists, the purchase and sale of assets, change the composition of the board and the supervisory board, change the strategy of the joint stock company. In cases of deterioration of the financial and economic condition of AT, shareholders - members of the Supervisory Board must take measures to get the company out of the crisis.

Table 2.2

The influence of shareholders on corporate governance depending on the size of the block of shares

Or foreign company, which does not have the status of a legal entity, but has civil legal capacity corresponding to the legislation of a foreign state. May act as a shareholder the Russian Federation, its subject or municipality who own one or simultaneously several shares of the capital of a joint-stock company.

Shareholders and Management

A shareholder is a person who, together with other persons having this status within the company, is a representative of the management body of the company. Any decisions within the organization are made at the shareholders' meeting, both at the regular and extraordinary meetings. The volume of the block of shares determines the rights of shareholders in relation to the company. This can be both the right to nominate a candidate to the board of directors, and the right to put an issue on the agenda of the general meeting. The size of the block of shares does not in any way affect the right of a shareholder to take part in the meeting and the right to receive dividends. Dividends are calculated in accordance with the size of the block of shares, but only if the decision to pay them was made at the scheduled meeting.

Investors and management

An investor can be both a legal entity and one that invests its capital in investment projects. The investor is more interested in projects that are able to minimize risks. The participants of the joint-stock company are interested in promoting projects in order to increase dividends by actively participating in their development. The investor has no such right. He simply considers the project, analyzing its actual state and prospects, and makes a decision.

What are shareholders?

A shareholder is the owner of certain shares, the type of which determines his belonging to one category or another. Can be distinguished:

• the owner of ordinary shares;
• owner of preferred shares.

Depending on the volume of assets, the following categories are distinguished:

• the sole shareholder who owns 100% of the shares;
• majority or large, which owns the predominant package of securities, giving him the right to participate in the management of the joint-stock company;
• he owns less than 50% of the voting shares;
• a retail shareholder is a person who owns the minimum amount of shares, allowing only to participate in the general meeting and giving the right to receive dividends.

With only 1% of the shares, an individual or legal entity already has the full right to take part in the selection of candidates for the company's board of directors. As for the investor, no matter how much he invests in a project or in a company, he will not receive this right. The maximum similarity between the two participants can be noticed only if we compare the investor and the retail shareholder. In this case, the latter will have a certain advantage in terms of the right to participate in the general meeting.

Opportunity difference

If we consider shareholders and investors in the context of possible prospects for earning, we can talk about the presence of more diverse tools for the latter. The investor has everything necessary to invest not only in JSC, but also in precious metals, currencies, securities, including shares, but without taking part in decision-making regarding the activities of the company in which he invested. It should also be said that in case of bankruptcy of the project, the investor does not receive anything. The shareholder has the full right to claim his share, in accordance with the block of shares, counting on the capital of the organization, which remained after the payment of all debts. This right covers not only the material base of the enterprise, but also the property on its balance sheet (equipment, machinery, real estate, etc.).

Shareholders and investors - a striking similarity in the example of Gazprom shares

Shareholders of Gazprom and people who decide to invest their money in a large Russian company, - these are, in fact, the same persons, however, only if we consider work with small capitals. Investments can be very different, including investing in the purchase of shares, which determines the presence of colossal similarities. Meetings of shareholders for shareholders and investors in parallel are held systematically, but to take part in them or not, this is an individual decision for everyone. Possessing a minimum share of the rights to own the company, an individual or legal entity cannot influence changes in the rules of its work. Shareholders of Gazprom (and in parallel investors) purchase assets either through a bank, or with the support of a brokerage company, or on the MICEX and RTS exchanges. Small investors and shareholders in most situations do not wait for the decision, the implementation of which is taken at the meeting. They catch the moment of a rise in the price of shares and sell them, earning on the difference in prices. This trend is relevant only for small shareholders and investors. Large participants in this market segment have more ambitious plans and goals.

What is the difference between a shareholder and an investor in Sberbank?

As in the situation with Gazprom, there is no difference between small shareholders and investors, since investing in the country's largest financial institution is possible only through the purchase of shares, which automatically transfers a financial market participant from one category to another. Shareholders of Sberbank, whose owners do not provide access to participation in the meeting, can safely be called investors in the full sense of the term. Sberbank shareholders who have access to meetings and acquire assets in order to participate in the work of a financial institution are guided by long-term prospects. Modern investors, after the global crises of the last decades, prefer investing in a project with short term payback, no more than 2-3 months.

Shareholder, as one of the subcategories of investors

The role of the investor can be assigned to both individual, and a legal entity that can dispose of not only their own, but also borrowed funds. When using his capital, the investor is called an individual. If the latter uses borrowed funds in its work, it receives the status of an institutional one. There is a division of investors into direct and portfolio. Portfolio set the goal of increasing capital. Shareholders are direct investors who invest money in the assets of a company with the primary goal of obtaining certain powers in the aspect of its management.

Introduction

The world history of the joint-stock form of economic activity has its roots in the era of emerging capitalism. Scientists - economists argue that the emergence of joint-stock companies was a qualitatively new period in the evolution of the capitalist mode of production. By their birth, joint-stock companies defuse an explosive situation when the system of individual property relations came into conflict with the needs of the development of productive forces. Entrepreneurs of that historically distant era, previously known to us as capitalists, being subjects of individual reproduction, faced the cruel objective necessity of pooling their capital to organize joint production.

Rights and obligations of shareholders

A joint-stock company is a company that has an authorized capital divided into a certain number of shares of equal par value, and is liable for obligations only with its property. Shareholders incur losses only to the extent of the value of their shares.

A share is a security that confirms the right of a shareholder to participate in the management of the company, in its profits and distribution of the balance of property upon liquidation of the company.

The action is indivisible. In cases where the same share belongs to several persons, all of them in relation to the joint-stock company are recognized as one shareholder and may exercise their rights through a common representative.

Shares are acquired by shareholders when creating a joint-stock company on the basis of an agreement concluded with its founders. In the event of an additional issue of shares in connection with an increase in the authorized capital, unless otherwise provided by the company's charter, they can also be sold at contractual prices, received by inheritance, by way of succession of legal entities and for other reasons. Shares can be sold by their holders directly or through banks.

When creating a joint-stock company, shares can be distributed by public subscription to them, or in the order of distribution of all shares among the founders.

In addition to ordinary shares, preference shares may be issued, giving the shareholder a pre-emptive right to receive dividends. The owners of preferred shares do not have the right to vote in a joint-stock company, unless otherwise provided by the charter. Preferred shares may not be issued for an amount exceeding 10 percent of the charter fund of a joint stock company.

To raise additional funds, a joint-stock company has the right to issue bonds with their distribution between legal entities and citizens.

Shareholders have formalized rights that are the same for all shareholders - owners of certain types of shares. Turning to the consideration of the basic rights of shareholders, it should be emphasized that they are predetermined by the shares owned by the shareholder.

The charter of a company may limit the number of shares that each shareholder can own. For shareholders of people's enterprises, such a restriction is provided for in the legislation. According to Art. 6 of the Law on People's Enterprises, one shareholder cannot own more than 5% of the shares of an enterprise.

According to Art. 2 of the Law on the Securities Market, a share gives the right to receive part of the profit in the form of a dividend, to participate in the management of the company and to part of the property remaining after its liquidation. Specified rights shareholders are basic, but they do not exhaust all of his powers.

The rights of shareholders are divided into property and non-property.

The most important property right of a shareholder is the right to receive part of the company's profit in the form of a dividend. For ordinary shares, dividends are paid only if there is a profit, that is, the right to a dividend of a shareholder - the owner of an ordinary share is conditional. Until a decision is made to pay dividends on these shares, their owner does not have a subjective right to dividends that could be exercised in court.

On the contrary, Preferred shares are usually guaranteed to pay a dividend in a certain amount and in deadlines. But this applies only to those categories (types) of preferred shares, the amount of dividends for which is determined in the charter. If it is not defined, dividends on preferred shares are paid in the same amount as on ordinary shares. Preferred stock dividends are usually paid out of profits. If there is no profit, then at the expense of other means, for example, a fund specially created by the company. At the same time, the general meeting of shareholders has the right to decide on non-payment, or on incomplete payment of preferred shares.

Dividends can be paid quarterly or semi-annually (interim payments) or at the end of the year. The decision on the payment of interim dividends is made by the directors (supervisory board), and on the payment of annual dividends - by the general meeting of shareholders.

In case of non-payment or incomplete payment of dividends on preferred shares within the established time limits, their owners receive the right to vote in resolving all issues at the general meeting of shareholders. The legislation provides for cases of a ban on the payment of dividends, which is aimed at ensuring the interests of creditors and maintaining the normal economic activity of the company.

Receiving a part of the value of the property of a liquidated joint-stock company constitutes an independent right of a shareholder, which can be classified as one of his fundamental rights. When a joint-stock company is liquidated, the claims of creditors are first of all satisfied at the expense of its property. After their satisfaction in accordance with Art. 23 of the Law on Joint Stock Companies, the remaining property is distributed among its shareholders in the following order:

First of all, the payment of shares of shareholders who have the right to demand the repurchase of shares is carried out;

In the second place, accrued but not yet paid dividends on preferred shares are paid and determined by the charter liquidation value such shares;

In the third place, the remaining property is distributed among shareholders-owners of ordinary and all types of preferred shares.

The property rights of shareholders also include:

Right preemptive purchase shares;

The right to require the company to buy back the shares held by the shareholder;

Here we are talking, first of all, about the redemption of a part of the shares (according to Art. 72).

At the same time, the company may purchase shares, the number of which does not exceed 10% of its authorized capital. If the total number of shares declared by the shareholders for redemption exceeds the specified limit, the shares are purchased from the shareholders in proportion to the declared requirements.

The Company made a decision on reorganization;

On the conclusion of a major transaction;

On the introduction of amendments and additions to the charter of the company that restrict their rights.

Such a right (according to Article 75) arises from a shareholder if he voted against this adoption or did not take part in the voting. In this case, the redemption is carried out not at the nominal, but at the market value of the shares.

The non-property rights of shareholders are almost all associated with the opportunity to participate in the management of the company's affairs:

First of all, to participate in the general meeting of shareholders. The list of shareholders who have this right (according to Article 51) is compiled on the basis of the data of the register of shareholders on the date set by the board of directors (supervisory board). This date is set not later than 60 days before the General Meeting of Shareholders.

The shareholder has the right to be elected (appointed) to the management bodies of the company.

The holder of 2% may also propose candidates for election to the board of directors (supervisory board) and to the audit commission. (Art. 53)

Owning 10% of the shares, has the right to demand the convening of an extraordinary general meeting of shareholders (according to Article 55).

Thus, it can be seen that ownership of certain rights by shareholders is closely related to the type of shares and their number.

The totality of the rights and obligations of a shareholder determines the membership of a citizen in a joint-stock company. The rights of a shareholder are usually divided into personal and property. Personal rights include: the right to participate in general meetings of the company, to vote, to challenge decisions made and to receive information. The right to vote at general meetings of the company arises from the moment of full payment of shares. The number of votes is determined by the number of shares.

Shares that do not give the holder the right to vote even in cases where the issue of changing the charter of the company is being decided are widely used. The absence of voting rights is, as it were, compensated by certain property privileges, for example, the right to receive a fixed dividend.

The personal right of a shareholder is the right to information, which is considered as one of the means of control over the activities of the enterprise. At the request of any shareholder, the board is obliged to provide information about the affairs of the company at the general meeting. The right to information does not extend, however, to familiarization with the society's books. In some cases, the Board has the right to refuse to provide information.

The shareholder can then go to court, but the risk of incurring legal costs, including the defendant, falls on the plaintiff. In France, a distinction is made between a temporary right to information in connection with a general meeting of shareholders and a permanent right to information, which can be exercised at any time. Shareholders have the right to familiarize themselves with the minutes of general meetings for the last three years. Failure to provide information may result in criminal liability.

In all countries, shareholders holding at least 10% of the shares are entitled to request an audit of the operations of the board. Authorization for such verification is given by the court, which also appoints an expert to verify specific transactions. In the US, information can only be required to achieve the goals arising from the company's charter. The proof that this is the purpose lies with the shareholder. In England, shareholders have the right to get acquainted only with the list of shareholders and the annual report. The books of the company can be consulted only in connection with a claim and in the presence of a relevant court order.

Property rights include the right to receive dividends and to a part of the property upon liquidation of a joint-stock company. The size of the dividend is usually determined as a percentage of the nominal price of shares, and if the nominal price is not fully paid, then accordingly to the amount paid. The dividend is paid out only from the profit established in the balance sheet. A company is profitable when its assets exceed its liabilities. It can be obtained from the sale of shares at a price above par or by attributing part of the sale price of shares to profits, as well as by revaluing the company's assets due to a decrease in the authorized capital.

There is no uniform solution to the question of how much of the profit is to be distributed as dividends, but usually it is part of the profit that goes to distribution.

The legislation of Germany, France and a number of other countries provides for the need to create reserve funds. In the USA and England the decision of this question is left to the board.

The question of when the right to receive a dividend arises is not the same. For example, in Germany it arises from the moment the relevant decision is made by the general meeting of shareholders. The declared dividend becomes the debt of the joint-stock company, and the shareholders, along with other creditors, participate in the distribution of the company's assets.

The right to a dividend can be assigned by issuing a special document-certificate for receiving a dividend. The assignment of the right to a share does not necessarily entail an assignment to receive a dividend.

In a number of countries, the property right of a shareholder is considered to be the right to demand a pre-emptive purchase of shares in the event of their additional issue in order to increase share capital. The value of a share may exceed its par value. Amounts received in excess of the nominal price are not used to increase share capital, but are directed to reserve capital or distributed as dividends.

The law of most states allows installment payment for shares. When creating a company, it is required to pay 25% of the value of the contribution. The further procedure for paying the rest of the amount is determined by the charter, in England and the USA by the regulations. Not fully paid shares can only be registered. Severe sanctions have been established in case of improper fulfillment by the shareholder of this obligation. A shareholder who has made a delay in payment is obliged to pay a certain percentage of the amount in respect of which the delay is allowed. The possibility of claims for damages is also not ruled out. If there are conditions established by law (additional term, warning, publication), it is possible to deprive the member of the society. It is prohibited to impose on the shareholder any obligations other than the payment of shares. However, a shareholder may assume certain responsibilities voluntarily.

Majority shareholders, or majority shareholders, are the largest, main shareholders of the company. The name itself comes from the word majorité, which means "majority" in French. This word became the basis of the term majoritaire, which has passed into other languages. Accordingly, the word "minority" is derived from the word minorité - a minority. Sometimes, for brevity, these two groups of shareholders are called majors and minors, but these names refer more to professional slang.

Majority shareholders in the general classification of shareholders

According to the generally accepted classification, which can be found in any textbook of economics, there are four categories of shareholders.

1. The only one. This is a person (natural or legal) who owns 100% of the shares of the company, that is, controls the entire capital of the joint-stock company.

2. Majority. These are large shareholders, whose allow them to participate in the management of the joint-stock company.

3. Minority. The blocks of shares of these persons are quite large, sometimes worth hundreds and millions of dollars. But the share in the company is not very large (for example, 1%). Minority shareholders are given some rights (for example, to collect information about the financial condition of the company), but they do not participate in the management of the company.

4. Retail. These are small shareholders who are entitled only to receive dividends.

Majority shareholders and minority shareholders are considered the main categories of shareholders - sometimes only they are singled out. After all, the sole shareholder is, in fact, just the sole majority shareholder of the company. And retail shareholders are small minority shareholders.

The main boundary of interests is between the majority and minority shareholders: the former are most often interested in the growth of the company's value, expressed in the value of their blocks of shares, the latter are interested in dividends. This conflict of interest is classic.

What percentage of the shares does the majority shareholder have?

Where is the boundary between these two categories of shareholders, between majority shareholders and minority shareholders? There is no clear boundary, since everything depends on the charter of a particular company, which determines the minimum threshold for majority stakes. Much depends on how large the stakes of other shareholders are.

As a rule, the majority shareholders include persons who control such a block of shares, which allows them, according to the charter of the joint-stock company, to exercise certain rights to manage the company. At a minimum, participate in the election of the board of directors.

The majority shareholder can be an individual (individual), and entire companies, as well as investment funds.

The influence of the majority shareholder depends on the percentage of shares that he owns. Blocking blocks of shares have a special weight - their owners can veto the decision of the board of directors. In theory, a blocking stake is considered to be 25% + 1 share, but in reality the percentage figure may be less.

If the majority shareholder has 50% +1 share, he is considered the owner of an unconditional controlling stake (the size of the controlling stake may be less, for example, 20-30%). The charters of some companies allow in such cases to manage the organization solely. But what bigger company, the higher the weight of other majoritarians. In many joint-stock companies, even the owner of a controlling stake has to reckon with the voting of the majority shareholders, because even 5% of the shares of a giant company can cost billions of dollars!