Should I keep the register of shareholders independently?
According to paragraph 1 of article 44 of the Law on joint-stock companies (hereinafter — JSC Law) in the register of shareholders shall contain information about each registered person, quantity and categories (types) of shares recorded to the name of each registered person, other information stipulated by legal acts of the Russian Federation. Legal definition of registry enshrined in the regulations on maintaining the register owners of registered securities (further — Position). In accordance with clause C of article 44 of the JSC Law, the holder of the register of shareholders of the company may be the company itself or a professional participant of securities market, carrying out activity on conducting the register of owners of nominal securities — the Registrar. In a society with number of shareholders more than 50 the holder of the register of shareholders of the company shall be the Registrar.
At the moment it is possible to observe a tendency of toughening by the legislator of the rules of keeping the register directed everything else at the abolition of the separate register of shareholders of the Issuer. According to some experts, over time, companies will not be allowed to own the registry to prevent violations of the rights of shareholders.
This is due to numerous abuses of societies or officials of the confidential information contained in the registry.
The register of shareholders — the most important document in the raider seizure. It contains all the necessary information, so making a registry is one of the main targets for raiding.
WHEN A POSSIBLE LEAK OF INFORMATION?
Information leakage is possible if officers have access to confidential information 1) because of their carelessness leaked; 2) intentionally sold the information, and 3) gave information under pressure.
1) If the facility maintains the registry yourself, you have to make sure that employees who have access to the registry, understand the importance and confidentiality of this information. They need to sign a confidentiality agreement with the condition of responsibility for its violation. You must also make regulations limiting access from the outside to the first persons of the company. For example, the Director needs to communicate with investors, potential partners and vendors only after checking their security.
The press can find a lot of stories of raids, which
begin with an "interview" of a qualified expert where the employee spoke in detail about his work, meanwhile revealing confidential information.
2) to Warn the company from the intentional sale of the register or extracts from the register is much more difficult, but possible.
Often access to this document has a very limited number of people, and the General Director of joint-stock companies included in their number.
Known cases where managers of companies, the leading the registry yourself, colluded with a third party, resulting in the violated rights of the shareholders. Director of the company, keeping yourself and the registry, and the seal of the society is open to any criminal influence.
So, the press described the case of a strategic cargo carrier in Yamalo-Nenets Autonomous district Salekhard river port (SRP), which was the center of interest of the infamous Ekaterinburg businessmen. To gain control over the port, they conspired with the Director General of the PSA. He gave the invaders the register of shareholders, and money for the purchase of shares. Their costs CEO compensated from the corporate offices, "hung" on the port through front companies-lenders fictitious debt in the amount of 7 million rubles., and then resigned.
Thus, the raiders almost on the money the port has acquired 22.5 percent of its shares to small shareholders — physical persons On the raiders continued the capture in the classic way — with criminal cases bought to court rulings, the introduction of its Directors,
blackmail recalcitrant owners and terminal assets. In the end, control over the largest carrier of Yamal passed into the hands of the raiders and their affiliated firms.
According to the order of operations in the registry should be based on the local document of the company.
3) to exclude criminal influence on the General Director of joint-stock companies, shareholders should ensure that all attempts of pressure on the Director (and other officers) with the aim of obtaining confidential information becomes known to them from the Director immediately after the first signals of an attack.
FEATURES OF SELF-REFERENCE
So, if a JSC with more than 50 shareholders are obliged to transfer the maintenance of registry to the Registrar, a society with a smaller number of shareholders may maintain the register themselves or pass it to a special Registrar
On the issue of independent maintaining the register of shareholders of the Issuer was recently approved in order No. 09-33/PZ-n "On the procedure of keeping the register of holders of registered securities by issuers of registered securities" (hereinafter — the order № 09-33/PZ-n), which clarified the issue.
Development of the order was due to the necessity of unified requirements to professional participants of the securities market — registrars and issuers engaged in self-management of registry of holders of securities
According to the order of operations in the registry should be based on the local document of the company, Rules of conducting the register of owners of registered securities approved by the Board of Directors (Supervisory Board) of joint stock companies, if their approval is not referred by the company Charter to the competence of the Executive bodies.
In addition, a requirement for the provision of a joint stock company annual reporting to the territorial body FSFR, containing, including information about the number of accounts in which are recorded securities on the share of state and municipal property, the number and volume of transactions related to ownership re-registration of securities in the reporting period.
According to the order within six months from the date of entry of the order into force, all joint stock companies must bring their activities in keeping the register in accordance with the requirements of the document.
Will focus on who in the company can and must work to maintain registry.
The Federal financial markets service of the Russian Federation (FFMS) in his order dated 27.12.2007 No. 07-113/PZ-n "On requirements to the procedure of keeping the register of owners of registered securities by issuers of registered securities" indicated that a joint stock company, the number of shareholders in which at least 50, for self-maintenance of a register of shareholders must employ at least one employee possessing qualification certificate of the FFMS financial market specialist in keeping the register.
The basis for such order of the FFMS of steel inspection, revealed numerous violations of shareholders ' rights for self-maintenance of the register of companies. According to experts, in Russia tens of thousands of such joint-stock companies (about 50% of the total number of joint stock companies). With the entry of an order in force joint-stock companies had to either hire certified specialists for the maintenance of registers, or registers to transfer registrars.
This point of order has caused the discussion that led to litigation aimed at the abolition of the above provisions. According to many participants of the securities market, shareholders and managers of joint stock companies, this rule is contrary to the Federal laws "On securities market" and "On joint stock companies", in which a mandatory transfer register is only the excess of the required values (if the number of securities owners more than 500 or if the number of shareholders more than 50). The FFMS pointed to the need to maintain the contested norm as non-professional inventory possible cases of theft of stock.
In the end, the Supreme court declared illegal the point of order ФСФР1 requiring companies that keep a register of shareholders without the involvement of the Registrar, to carry out this activity only in the presence of a certified service specialist.
At the moment joint-stock company is not obliged to hire a specialist with a certificate, but the need for the state society qualified professional to maintain the registry is indisputable. Taking into account that the best way to protect the rights of the owner and the Director of joint-stock company is proper maintenance of its shareholder register, the society must be an expert with the necessary knowledge and implements all operations on the registry for at least 4 hours every working day of the week (paragraph 5 of the Regulations on keeping the register). Job description of personnel should include the duties and responsibilities of workers engaged in maintenance of the registry. In addition, according to the order № 09-33/PZ-n of the requirements to officers and other employees responsible for keeping the register of owners of registered securities must be contained in the Rules of keeping the register of owners of nominal securities of joint-stock companies.
Specialist company entrusted with the maintenance of the register of shareholders, shall regularly monitor the emergence of new normative acts, orders, information letters pertaining to this activity. This will allow the Issuer to avoid administrative penalties under the law.
Requirements, establishing the rules of conducting the register, a lot — hundreds of articles in the 15 legislation. In these circumstances it is difficult not to get confused and to properly build the activity on keeping the register of shareholders. In addition, for violation of rules of conducting the register of shareholders from April 2009 established the penalty of a fine of up to RUB 1 million (article 15.22 of the Code on administrative offences).
For violation of rules of maintaining the register of shareholders will be punished with a fine of up to 1 million rubles.
Kiselev Vitaliy, senior associate
The law firm "cliff": is the self-maintenance of the register of companies greater security?
Activities on keeping the registry is complex and demanding, and for the safety, completeness and accuracy of the information of the shareholders register are established as the penalties for the Issuer, and the personal responsibility of the sole Executive body of the company. The FFMS of Russia developed a number of normative acts, carefully regulating the actions when the shareholder (form, content of the documents making system of conducting of the register, the sequence
any action) that greatly simplifies an independent shareholder. A number of experts noted that self-maintenance of the register of societies is due to the large number of bugs and disorders than in the implementation of these actions by the Registrar. It is also noted that the conduct of the register of shareholders by the Registrar reduces the risk of leakage of information from the registry. However, I believe that this risk is equal as in the conduct of registry by the Issuer independently and in the exercise of such action by the Registrar
So, the company may keep the register of shareholders independently or with the assistance of independent registrars. Of course, each society determines which method is most convenient for him. But keep in mind that the maintenance of the register by the independent Registrar in the first place, costs money (and in the current financial situation it becomes important advantage to self-register), and secondly, not in the interest of security, privacy, capital.
If the company runs its own registry, it is easier to prevent the leakage of information about the owners of the company in unfriendly company. Obviously, no one will know about who is the owner of the companies, respectively, less than the risks associated with capture. Maintenance of register by an independent Registrar is not an indicator of safety, periodically there are scandals related to the care of the stock in someone else's unlawful possession for sale or takeover of the bases of the Registrar. And then sue his company is much more difficult than to prevent a similar situation.