Translated material
AVVAns from the Federal Securities Commission
Natalia Kalinichenko
“Customizing” the Federal Securities Market Commission “to suit” the St. Petersburg management team could be costly for investors
“Customizing” the Federal Securities Market Commission “to suit” the St. Petersburg management team could be costly for investors
(Photo: Max Novikov )
Who among the high-ranking officials of the state has not recently spoken about the shortage of investments, which Russia needs like air. But officials are very reluctant to talk about the other side of this problem - guarantees of investors' rights. They can be understood - there are more than enough cases of violation of investor rights, and the highest government authorities have to resolve conflicts related to this every now and then (let’s just remember the scandal with British Petroleum Amoco, from which they tried to take away Chernogorneft - the main producing division of SIDANCO, where BP is a co-owner ). And it seems that this trend will not be broken in the near future.
Cutting and sewing FCSM
The largest number of administrative levers for protecting shareholders (and investors today are mostly shareholders) is concentrated in the hands of the Federal Commission for the Securities Market (FCSM), a kind of overseer and regulator of the market. The FCSM has the right, for example, not to register new issues of securities if the members of the commission considered that as a result of additional issues or reorganization (merger, spin-off) of joint-stock companies the share of small shareholders would be “diluted”, which means their interests would be infringed, etc. .d. Reports on securities issues are submitted to the commission, the FCSM issues and revokes licenses of professional participants in the securities market, has the right to fine companies that violate the rules of issue, etc.
For a long time, the FCSM was headed by Dmitry Vasiliev, but with the arrival of Vladimir Putin’s team on February 1, he ceded this position to the deputy chairman of the finance committee of the St. Petersburg administration, Igor Kostikov. After a pause, the “new broom,” as it should be, began to purge the team of the former head of the Federal Securities Commission from the commission. Moreover, this required a whole acting decree. President, who approved the new regulations on the commission on April 3. Annual tests of deputy chairmen for professional suitability using certification were specially invented so that Vasiliev’s former deputies would not pass them. But this is not what is alarming about the new schedule of the FCSM. After all, in the end, it is not so important which official is in power today; the main thing is that the public administration system contains reasonable mechanisms for making decisions and responsibility for them.
So, for example, if earlier the commission, having issued a general license to the Central Bank for the right to license banks operating in the securities market, had suddenly decided to cancel it, none of the market participants would have suffered. Now the cancellation of a general license entails the automatic cancellation of bank licenses. That is, banks will have to work under the constant threat that, if something happens, they will pay for the mistakes of the Central Bank or the Ministry of Finance. “The commission will simply never be able to cancel the general license, knowing full well that in this case the market will come to a standstill,” bankers interviewed by Itogi shared their impressions. Apparently, this was precisely the meaning of innovation. The role of the commission, which was conceived as a body above departmental interests, has been reduced to zero; its leverage over the Central Bank (licenses banks) and the Ministry of Finance (responsible for the government securities market) has been practically taken away. Now they will be able, without regard to the FCSM, like a swan, a crayfish and a pike, to regulate their wards according to their own, not at all unified and synchronized rules.
But this is not the most important thing. The FCSM used to discuss all new regulations in advance with a wide range of professionals and market participants; for this purpose, the Commission had an Expert Council. It included representatives of government agencies, the professional community and independent experts in equal proportions. Possessing the right of “veto” (which is unique for Russian reality: for the first time, market participants were given the opportunity to block unreasonable decisions of their regulators), this body turned out to be inconvenient for the new leadership of the commission. It was simply abolished. Really, why tie your hands?
Submit the SDA!
And why come up with some unified rules and standards when you can indulge the passion that has long been characteristic of officials for making individual decisions. In special cases, it turns out that you can turn a blind eye to the regulations previously written for everyone.
Remember the loud advertising campaign that in 1993 accompanied the distribution of shares, or rather, certificates of deposit of shares - the so-called SDA of the Automobile All-Russian Alliance (AVVA)? At that time, AVVA issued bearer shares for the first time in Russia. The owner's name was not indicated on the papers, and the company did not maintain a register of shareholders. The alliance collected money for the construction of a new automobile plant in Togliatti. True, plans were later adjusted, and now AVVA, as its website says, together with AvtoVAZ is participating in the development of projects to create large-scale production of cars and components in Russia. We quote: “Over the five years of joint activity, ABVA OJSC has participated in work on a large number of projects. These include work with the Finnish company Valmet Automotive to produce Samara Baltic cars in Finland, work on creating a joint venture with the world’s largest car manufacturer General Motors and others".
By issuing the SDA, AVVA did not violate the law. However, subsequently the circulation of such securities was prohibited, and the state obliged the joint-stock companies that issued the SDS to ensure the exchange of bearer documents for registered shares of these companies. The Alliance has been carrying out such an exchange for two years now (a decision of the Board of Directors of October 15, 1999 reduced the exchange period to June 2000), but a large group of shareholders is in no hurry to part with the SDA, which greatly irritates the company's management, accusing shareholders of passivity. In order not to waste time, the leadership of the alliance identified a group of “inert” shareholders, whose existence deprives the company of legal purity (since bearer shares are prohibited by law), and decided to “excommunicate” them from the company, asking the Federal Commission for Securities for the go-ahead to reorganize the company by spinning off of it the “inert” part. That is, in place of ABBA OJSC, two companies should have appeared, conditionally AVVA without SDA owners, the so-called functional part, and, relatively speaking, AVVA-inert OJSC, where it was supposed to gather the careless SDA owners. The owners of SDA, and these are mainly individuals, as a result of such a reorganization would become shareholders of a company that does not carry out entrepreneurial activities, the main purpose of which is the acquisition of SDA from their owners for money or in exchange for shares of AvtoVAZ or the alliance itself. During the spin-off, the holders of the securities would be deprived of their share in the joint-stock company, as well as the opportunity to receive part of the company's profit in the form of dividends in the future only because the company's management considered them to be insufficiently active.
The first reaction of others to the mention of the alliance was unusually unanimous: “Are they still alive?” The owner of SDA, who I discovered in the editorial office of Itogi, responded to my requests to bring a security for a long time: why do I need such a rarity? He had not heard of any reorganization, like most ordinary people who do not look at the Internet. The advertising campaign for collecting SDAs, in contrast to the campaign for distributing them, turned out to be unusually quiet. Moreover, the company decided to earn extra money on the exchange by forcing SDA owners to pay “for the provision of reference and consulting services and services for reviewing documents at the rate of 2 rubles 50 kopecks for each share” (share par value - 10 rubles - “Results”), and also 20 rubles. for issuing and forwarding an extract from the register of shareholders. All these overhead costs should actually be borne by society itself.
It is absolutely incomprehensible how a joint-stock company can ensure, during reorganization, a proportional division of the company’s assets and liabilities strictly on the basis of the will of the paper holders, as AVVA General Director Yuri Zektser assures in his letter addressed to Igor Kostikov. If the owners of SDA, without asking their expression of will, are “pushed” into a new joint-stock company, how will the management of AVVA know what percentage of the shares of the alliance itself, AvtoVAZ, and how much money to allocate to the new company for the redemption of SDA? How will the authorized capital of such a company be formed?
In general, as Mr. Zektser admits, “despite the obvious logic and effectiveness of such a decision, the obstacle to carrying out the reorganization option we propose are the “Emission Standards...” approved by the Federal Commission for the Securities Market, where a private and rather rare option of reorganization in the form of a “spin-off” is considered as the only possible one, which... does not take into account the specifics of joint stock companies created before the current legislation came into force."
Not at all embarrassed by such trifles as legislation, Mr. Kostikov replies: “Having considered your appeal, the FCSM of Russia informs that it supports your intention to reorganize the company and separate the “inert” part of society from the functional one. The FCSM of Russia considers it possible to reorganize OJSC Automobile All-Russian Alliance" on the terms proposed in your letter. The Federal Securities Commission of Russia is ready to consider draft documents of OJSC "Automobile All-Russian Alliance" for state registration of the issue of securities placed in the process of such reorganization."
Five years ago, AVVA managed to raise a lot of money by putting the SDA up for sale. Now, having found its feet, the company, without making too much fuss, is trying to get rid of the “ballast” of illegal securities, since it requires legal purity to further attract capital and additional issues. And with the former investors, who, unfortunately, bought not registered shares, but “certificates,” you can do as you please: for example, separate from the alliance a company with passive shareholders (and there are probably a lot of them), for which you can hang up some debts.
Citizens! Give up SDA! There is still time before June to get something worthwhile: registered shares in your company or AvtoVAZ, or, in extreme cases, money. Otherwise, you will be “singled out”, and it is no longer known whether you will ever be able to return the invested funds. After all, the rules are not written for everyone.
Here is your promised acting position. Presidential dictatorship of law. The trend, however.