Reorganization of joint stock companies. Reorganization of joint stock companies in the Russian Federation

A joint stock company (especially an open or public type) is the most complex legal entity. These characteristics appear even during the procedures of reorganization and liquidation of such an organization.

Grounds and procedure for reorganization of a joint stock company

The grounds for carrying out reorganization procedures are divided into 2 groups. The first are associated with the initiative of the JSC itself, and the second are of a compulsory nature (Part 2 of Article 57 of the Civil Code).

The latter include the following reasons:

• If the organization occupies a dominant position and its activities are monopolistic in nature (Article 38 of the Law “On Competition”). In this case, the body implementing the competition policy, or representatives of its local branch, file a claim for separation. The procedure itself is carried out on the basis of a court decision.
• Requirements may be put forward in relation to banking entities. Reorganization joint stock company in the form of accession is provided for in Art. 189.44 and 189.45 of the Law “On Bankruptcy of Credit Institutions”. The purpose of the procedure is to bring banks into a state that ensures compliance with all necessary standards. The corresponding requirement is presented by the bodies of the Central Bank or officials of its regional branch.

JSC reorganization procedure

The reorganization procedure is provided for in Art. 15 of the Law “On JSC”. By general rule, the procedure is possible in any form. However, industry legislation may reduce and limit their number. In particular, Art. 33 of the law on non-state pension funds prohibits the transformation procedure.

Voluntary reorganization involves decisions made by general meetings of shareholders of the companies participating in the process.

If it is compulsory in nature, then the company is given a certain period to comply with the requirements (in the case of the antimonopoly law it is six months). If this procedure is not followed, then an arbitration manager is appointed.

If the reorganization is associated with the emergence of an enlarged economic entity, then in the cases provided for in Art. 29 of the Law “On Competition”, when it is possible to create a dominant entity in the market, approval of such a decision by the antimonopoly authority will be required. You can also contact us at the location of its regional branch.

Further step-by-step instructions are set out in Art. 15 of the Law “On JSC” and Art. 58 - 60.2 GK.

Notification of the registration authority

The law establishes the obligation to notify the tax office at the place of registration about the commencement of reorganization actions. If there are many companies participating in the procedure, notification is carried out by the legal entity that made the corresponding decision. The company entrusted with this responsibility by decisions can also notify.

The deadline for submitting information is 3 days from the start of the procedure.

The presence of its branch is ensured in every region. Often it is located in the same building as the tax registration office.

While the procedure is ongoing, such messages must be published monthly. They must be posted by all parties involved in the reorganization of the company.

The message must include information about the original companies, the legal entities that will be formed, the form of the procedure, and the procedure for creditors to present their claims. You also need to inform about the address of the executive bodies of the companies and other places where demands can be made. If there are persons who intend to ensure the fulfillment of the JSC’s obligations, then they must also be listed.

In addition to media reports, Art. 13.1 of the Law “On state registration legal entities" obliges to notify all known creditors of the procedure in writing within 5 days.

Registration of the procedure

As part of the procedure, an inventory of all assets and liabilities of the participants takes place.

Depending on the forms of reorganization, the current procedure requires the execution of a transfer deed (transformation), a merger or accession agreement, or a separation balance sheet (allocation, division).

These documents must be approved. The corresponding decision is made by the general meeting of shareholders of each organization.

The transfer deed, agreement or separation balance sheet is submitted to the registering tax office along with other required documents.

The basis for completing the procedure is the registration of a company, the creation of which is provided for in the reorganization documents. In case of merger, this moment is the entry into the Unified State Register of Legal Entities about the termination of the activities of the affiliated organization.

Grounds and procedure for liquidation of a joint stock company

Liquidation of a public (open) or closed (non-public) joint stock company occurs by decision of the general meeting, or by force. The second ones are indicated in Art. 61 Civil Code and include:

• requirements related to a gross and irreparable violation of the procedure for registering a JSC, if accepted by the court;
• claims related to repeated and gross violation of the law, in the event of the adoption of a corresponding judicial act;
• claims related to the company carrying out activities without a license, admission or membership in an SRO, satisfied by the court;
• in the event of a court decision declaring the organization bankrupt.

Like voluntary liquidation, compulsory liquidation is carried out by the company itself. If the prescribed procedure is not followed, the procedure is performed by the arbitration manager at her expense.

Start of the procedure

The liquidation of a joint stock company is initiated at the time of adoption of a decision by the general meeting of shareholders.

It should also provide for the creation of a liquidation commission, to which all management powers are transferred.

The company must notify the registration authority of the decision within 3 days.

At the same time, it is necessary to place a corresponding message in the media containing information about the deadline for accepting creditors’ claims (at least 2 months). This is also carried out at the location of the branch of the “Bulletin of State Registration”.

Working with creditors

Within a certain period, creditors have the right to submit claims, and the liquidation commission considers them. All this information, along with the composition of the property owned by the joint-stock company, is indicated in the interim liquidation balance sheet.

Their demands are satisfied in the manner prescribed by Art. 64 Civil Code, in accordance with established queues.

The result of this procedure is the creation of a liquidation balance sheet.

Payments to shareholders

Art. 23 of the Law “On JSC” establishes the following priority in the presence of property after payments to creditors:

• unsatisfied demands of shareholders for the redemption of stakes, in accordance with Art. 75 of the law;
• accrued but not paid dividends to owners of preferred shares, as well as their liquidation value provided for by the charter;
• payments to owners of all types of shares.

If there is not enough property to satisfy the 2nd priority, it is distributed among the holders of preferred shares in proportion to their number.

The moment the procedure is completed is the entry into the Unified State Register of Legal Entities.

Can be reorganized or liquidated voluntarily by decision of the general meeting of shareholders. A joint stock company also has the right to transform into a limited liability company or a production cooperative, as well as into a non-profit organization in accordance with the law.

The company may be liquidated voluntarily in the manner established by the Civil Code of the Russian Federation, taking into account the requirements of the Law on Joint Stock Companies and the company's charter. The company may be liquidated by a court decision on the grounds provided for by the Civil Code of the Russian Federation.

Liquidation of a company entails its termination without the transfer of rights and obligations by way of succession to other persons. In the event of voluntary liquidation of a company, the board of directors of the liquidated company submits for decision to the general meeting of shareholders the issue of liquidation of the company and the appointment of a liquidation commission. The general meeting of shareholders of a voluntarily liquidated company makes a decision on the liquidation of the company and the appointment of a liquidation commission.

From the moment the liquidation commission is appointed, all powers to manage the affairs of the company are transferred to it. The liquidation commission acts in court on behalf of the liquidated company.

The procedure for liquidation of a joint stock company is established by the Law on Joint Stock Companies. The liquidation commission publishes in the press organs in which registration data is published legal entities, a message about the liquidation of the company, the procedure and deadlines for filing claims by its creditors. The period for filing claims by creditors cannot be less than two months from the date of publication of the notice of liquidation of the company.

The liquidation of the company is considered completed, and the company has ceased to exist, from the moment the state registration authority makes the corresponding entry in the Unified State Register of Legal Entities.

Reorganization in the form of transformation of JSC into LLC - necessary measure for those legal entities that do not have the ability to comply with the procedures appropriate to their activities. This article will help you understand how to carry out such a procedure step by step and what is required for this. Also in the material we will consider step by step instructions reorganization of JSC into LLC.

JSC and LLC - the main points of contact

A joint stock company (JSC) is an organization whose authorized capital is divided into certain number securities or shares. Participants in such an economic entity or shareholders are not liable for the company’s obligations, therefore their possible financial losses will only be within the value of the shares they own. Mixed reorganization of JSC and LLC occurs according to general rules.

It is considered a complex and lengthy process, which takes on average at least six months. With a mixed reorganization, as a rule, some kind of double processes are carried out; accordingly, the procedure can last even longer.

There are two options for doing this:

• In the form of a merger. As a result, you can get a new unified structure, regardless of how many participants there were.
• In the form of an accession. At least two organizations take part, and as a result, one structure absorbs another or several.

A limited liability company (LLC) establishes one or more legal or individuals, and its authorized capital is divided into shares. Participants are not liable for obligations and also do not bear the risk of losses within the value of the shares they own in the authorized capital.

Is it possible to reorganize a JSC in the form of spinning off an LLC?

Yes, but it is a complex step-by-step procedure. First, you need to register the JSC as a Limited Liability Company, separate and register a new LLC, then turn back the company from which the LLC left into a Joint Stock Company.

However, let's return to the topic of our article.

Let's consider the procedure for reorganizing a JSC into an LLC at each stage.

Stage 1. Notification that the conversion procedure has begun

What do you need to do at the very beginning? You must act in accordance with a certain order. If even one step is broken, the consequences can be very serious.

The first stage is to make a decision on the general meeting of shareholders, at which the issue of transforming the joint-stock company is considered. The board of directors is convened for an extraordinary meeting, provided that the organization's charter does not provide otherwise. According to the law on joint stock companies, it is allowed to do without a board of directors if there are fewer than fifty shareholders in the company. And with the introduction of the new Civil Code of the Russian Federation, non-public joint-stock companies are allowed to do without it altogether. In cases where the company does not have a board of directors, then the charter specifies the body or person that has the right to convene such a board. As a rule, such powers are vested in the CEO. The decision to reorganize the JSC into an LLC has already been made.

Stage 2. Collection and preparation of documents

The second stage is quite important.

At this stage, draft documents are prepared, which must be approved at the general meeting. Shareholders have the right to study it before the meeting. Moreover, it is recommended to draw up a draft deed of transfer for approval by the council. For the purpose of transformation, before September 1, 2014, such a document was required; after this date, for the state registration of the reorganization of a JSC into an LLC of the company, this requirement was canceled. And, nevertheless, it is worth preparing it for financial statements. It is important to note that in the laws on joint stock companies, state registration of legal entities and individual entrepreneurs, information about the transfer act remains to this day, and therefore some tax inspectorates in the regions of Russia continue to require the act to be provided, and may refuse state registration in the absence of it.

Stage 3. Notification that a general meeting is being convened

At this step, they notify about the general meeting of shareholders, where the issue of transforming the joint-stock company is considered. For this purpose, a list of shareholders entitled to participate in it is compiled, according to the register of shareholders. Shareholders are notified of this event by letter (usually registered), unless otherwise stated in the charter, or the notification is handed in against signature. The main thing is that the notification should indicate all the important issues that need to be resolved and transformed.

According to the new Civil Code, the composition of persons participating in the meeting must be confirmed. In public joint stock companies, only the registrar is in charge of such a register of shareholders, and also acts as a counting commission. As for non-public joint-stock companies, either the registrar or the notary is responsible for this, and in this case, unlike public joint-stock companies, the registrar may be given the functions of such a commission, or a notary may be contacted on this issue.

Stage 4. Holding a general meeting

This is considered valid if there are shareholders present who own securities and collectively form more than half of the votes of the company's outstanding voting shares. The decision to reorganize a JSC into an LLC must be made by a majority, that is, ¾ of the votes of the shareholders who participate in the meeting. The decision reflects certain information regarding the procedure and conditions for the reorganization of a JSC into an LLC. The name and address of the new institution are also found there. The decision reflects the procedure for the exchange of shares and shares, the charter of the LLC after reorganization from a joint-stock company, the election of candidates to the management bodies, as well as, if desired, the transfer act.

Stage 5. Approval of the minutes of the meeting

After the general meeting of shareholders, the minutes of the meeting are approved. Initially, a protocol is drawn up based on the voting results. This function performed by the counting commission (or the person entrusted with such a function). The compiled protocol is signed by members of the counting commission (or persons who perform its functions). After this procedure, the minutes of the results of the general meeting are drawn up in two copies, which must be signed by the chairman and secretary of the meeting. In cases where a notary is involved, then it is drawn up in a separate document - this is a certificate of confirmation decision taken and the composition of the organization’s shareholders present.

Stage 6. Notification of state authorities about the transformation of the joint-stock company

After the protocol has been fully completed, the company must notify the tax service about the start of the process of reorganizing the JSC into an LLC. Such information is provided by submitting an application P12003 to the tax office, in which the signature of the head of the joint-stock company is notarized. Among other things, the original of the above-mentioned protocol must be attached to this application. After the government authorities have reviewed the documents provided, three working days later the head of the joint-stock company is given a record sheet stating that the reorganization procedure has begun by converting the JSC into an LLC. Today there is no longer any need to notify the Pension Fund of Russia, the Fund social insurance about the process, including the territorial tax service with which the joint-stock company is registered.

After receiving the entry sheet, the waiting process begins, which can last three months. Such rules allow creditors of a joint-stock company to submit their claims. At this stage, notifying the media is not mandatory (that is, it is not required).

Don't forget about the Pension Fund

Important are the obligations to submit reports to the Pension Fund, which must be confirmed by the fact of execution. However, the legislation does not stipulate which document is confirmatory. According to the law, if the applicant has not provided confirmation of submission of reports, then the tax authorities can independently request this information from the Pension Fund. Often, it is precisely because of dissatisfaction with the provided supporting documents on reporting that the tax service may refuse. There are also cases when tax authorities request from the Pension Fund necessary information and receive an answer that the organization has not submitted the reports, although sometimes this means reports for which the deadline established by law has not expired.

Stage 7. LLC registration process created as a result of conversion

The next step is the most important - the process of creating an LLC, which is formed as a result of the reorganization of a joint stock company. As mentioned above, an application must be submitted to the registration authority in form P12001, which must bear the signature of the applicant, namely the head of the joint-stock company. The manager's signature on the application is certified by a notary. It happens that the application is sent electronically, with enhanced qualified electronic signature, then the application is not certified. This package of documents also includes the Charter of the limited liability company in two copies, a receipt for payment of the state duty, which amounts to four thousand rubles. Some tax inspectorates are required to provide the decision itself on the reorganization of a JSC into an LLC, given that this requirement and the transfer act were canceled back in 2011, however, these changes have not been made to the law on joint stock companies, on the registration of legal entities and individual entrepreneurs.

When documents are submitted to the tax service by an authorized person, the power of attorney must be certified through a notary. Also in January 2016, an addition was issued stating that it is recommended to provide consent from the owner of the premises for the location of a newly organized LLC at this address.

Stage 8. Finding a recording sheet

As soon as the record sheet on the termination of the JSC’s activities is received, a notification is sent that the information has been changed, which is related to the issue of securities on electronic media to the Bank of Russia. Complete with the notification, they send a copy of the entry sheet from the Unified State Register of Legal Entities stating that the activities of the JSC have been terminated, and also provide a copy of the decision and an extract from the register of shareholders. I am interested in information about your personal account and redemption of shares. On the same day, it is important to inform the registrar about the reorganization of the company that has taken place. This notice is sent by the newly created LLC.

Is it possible to reorganize a JSC in the form of spinning off an LLC? Yes, but this is also a complex step-by-step procedure.

Informing counterparties

After the reorganization of a joint stock company into a limited liability company has taken place, it is important to remember that it is necessary to notify counterparties that the organizational and legal form has been changed, since in all documents, the address of the companies will indicate the previous one, as well as related details, such such as TIN, KPP, OGRN and others.

It is important to order a new seal. Although legal entities are not required to have one now, the tax office may not accept a declaration without a stamp.

It is also important to remember that such changes may be of interest to supervisory authorities, in particular the tax service, which carries out an on-site inspection, regardless of the timing and results of the previous control, since an inspection is the right of the tax inspector, and not an obligation.

Consequently, the reorganization procedure consists of several stages that are important to follow in order to achieve the desired transformation, including registering a new LLC. At the same time, it is necessary to inform not only government authorities, but also contractors and partners about the new status of the company.

This is not an entirely simple matter and requires careful preparation.

Introduction

Principles (standards) of corporate behavior

Forms of reorganization of a joint stock company

Introduction

Corporate governance is a system of interaction that reflects the interests of the company’s management bodies, shareholders, stakeholders, and is aimed at obtaining maximum profit from all types of company activities in accordance with current legislation, taking into account international standards.

The subject of corporate governance is control over the performance of corporate actions.

It is believed that corporate governance protects against abuse, but makes companies less flexible. At the same time, companies that comply with corporate governance standards have a clear advantage when attracting investment. According to investors, good corporate governance ensures the integrity of management and transparency of the company's activities, so the risk of losing funds is significantly reduced.

Establishment in Russia market relations and the increasing role of joint-stock companies in the development of the state economy and the welfare of citizens have necessitated awareness of the importance of the problem of corporate governance in our country, the emergence of which is inevitably associated with the transition to new system management.

Mostly industrial developed countries norms in the field of corporate governance have already appeared and are legislated, management systems, as well as standards of ethical behavior. Although specific issues may be viewed differently in different countries, these norms are increasingly becoming generally accepted, and, without a doubt, they work both for the benefit of a particular company and in the interests of society in the territory where this company carries out its activities.

In this work we will consider the following questions:

principles (norms) of corporate behavior;

forms of reorganization of a joint stock company.

1. Principles (norms) of corporate behavior

Corporate behavior is a concept that covers a variety of actions related to the management of business entities. Corporate behavior influences the economic performance of business entities and their ability to attract capital necessary for economic growth. One way is to introduce certain standards established based on analysis best practice corporate behavior. Standards of corporate conduct apply to business companies of all types, but they are most important for joint-stock companies.

The norms of business conduct are reflected in the documented Code of Corporate Conduct of the joint-stock company (the Company), which establishes the key principles of employee behavior, is mandatory for all employees and serves to strengthen business reputation.

The basic principles of corporate behavior began to be formulated in the early 1990s. in the “Code of Corporate Conduct” adopted in countries with the most developed capital markets: England, the USA and Canada. These codes regulated the practice of corporate conduct, in particular, issues of ensuring the interests of shareholders, accountability of directors and management of the company. Since then, many countries have issued codes of corporate conduct with appropriate methodological recommendations. Legal status These codes are not the same in different countries. Somewhere they are part mandatory conditions that companies need to comply with. In other countries, the code is a document that is only advisory in nature and is not associated with any mandatory requirements.

The purpose of applying standards of corporate conduct is to protect the interests of all shareholders, regardless of the size of the shareholding they own. The higher the level of protection of shareholders’ interests can be achieved, the larger investments Russian joint-stock companies will be able to count on, which will have an impact positive influence on Russian economy generally.

The Code of Corporate Conduct is standards of conduct. National standards (codes) are a set of rules in the form general principles and recommendations for the implementation of corporate relations. As a rule, the main focus of such codes is on regulating the exercise of shareholders' voting rights, the formation and activities of the board of directors, information disclosure and transparency of the company's activities, as well as other mechanisms for ensuring and protecting the rights of investors. The Code of Corporate Conduct creates the conditions for best corporate governance practices without complicating the structure and process of company management.

The Code of Corporate Conduct, as a rule, is not generally binding. normative act, but is recommendation act: it contains standards, rules and principles, set out in the form of norms recommended for implementation.

The principles of corporate behavior are the initial principles underlying the formation, functioning and improvement of the corporate governance system of companies.

Corporate behavior practices should provide shareholders with real opportunity exercise their rights related to participation in society. Shareholders must be provided with reliable and effective ways accounting of ownership rights to shares, as well as the possibility of free and quick alienation of shares owned by them.

Shareholders have the right to participate in the management of the joint-stock company by making decisions on the most important issues of the company's activities at the general meeting of shareholders. To exercise this right, it is recommended to ensure that: the procedure for notifying a general meeting of shareholders gives shareholders the opportunity to properly prepare for participation in it; shareholders were given the opportunity to familiarize themselves with the list of persons entitled to participate in the general meeting of shareholders; the place, date and time of the general meeting were determined in such a way that shareholders had a real and easy opportunity to take part in it; the rights of shareholders to demand the convening of a general meeting and to make proposals on the agenda of the meeting were not associated with unjustified difficulties in confirming the existence of these rights by shareholders; each shareholder had the opportunity to exercise his voting rights in the simplest and most convenient way for him. Shareholders must be given the opportunity to participate in the profits of the company. To exercise this right, it is recommended: to establish a transparent and understandable mechanism for determining the size of dividends and their payment to shareholders; provide sufficient information to form an accurate idea of ​​the existence of conditions for the payment of dividends and the procedure for their payment; exclude the possibility of misleading shareholders regarding the financial position of the company when paying dividends; ensure such a procedure for paying dividends that would not be associated with unjustified difficulties in receiving them; provide for measures applied to executive bodies in case of incomplete or late payment dividends. Shareholders have the right to regular and timely receipt of complete and reliable information about the company. This right is exercised by: providing shareholders with comprehensive information on each item on the agenda in preparation for the general meeting of shareholders; inclusion in the annual report provided to shareholders of the necessary information to assess the results of the company’s activities for the year; introducing the position of corporate secretary, whose tasks include ensuring shareholders’ access to information about the company. Shareholders must not abuse the rights granted to them. Actions of shareholders carried out solely with the intention of causing harm to other shareholders or society, as well as other abuses of shareholder rights, are not permitted.

Corporate conduct practices should ensure equal treatment of shareholders who own equal number shares of the same type (category). All shareholders should be able to receive effective protection in case of violation of their rights. Compliance with this principle is ensured by: establishing a procedure for conducting a general meeting that provides a reasonable equal opportunity for all persons present at the meeting to express their opinions and ask questions of interest to them; establishing a procedure for carrying out significant corporate actions, allowing shareholders to receive full information about such actions and guaranteeing compliance with their rights; prohibition to carry out transactions using insider and confidential information; election of members of the board of directors, members of the management board and general director in accordance with a transparent procedure providing for the provision of complete information about these persons to shareholders; provision of information about such interest by members of the board, the general director and other persons who may be considered interested in the transaction; taking all necessary and possible measures to resolve the conflict between the body of the company and its shareholder (shareholders), as well as between shareholders, if such a conflict affects the interests of the company

The practice of corporate behavior should ensure that the board of directors exercises strategic management of the company's activities and effective control on its part over the activities of the executive bodies of the company, as well as the accountability of members of the board of directors to its shareholders. The Board of Directors determines the development strategy of the company and ensures effective control over the financial and economic activities of the company. To this end, the board of directors approves: priority areas activities of the company; financial and economic plan; internal control procedures.

The composition of the company's board of directors must ensure the most effective implementation of the functions assigned to the board of directors. To achieve this, it is recommended that: members of the board of directors be elected through a transparent procedure that takes into account the diversity of shareholder views, ensures that the composition of the board of directors complies with legal requirements and allows for the election of independent board members; the board of directors included a sufficient number of independent directors. It is recommended that board members actively participate in meetings of the board of directors and board committees. It is recommended that meetings of the board of directors be held: regularly in accordance with a specially developed plan. It is recommended that the board of directors create committees for preliminary consideration of the most important issues falling within the competence of the board of directors. To control the activities of the executive bodies of the company, it is recommended that the board of directors: be vested with the right to suspend the powers of the general director ( management organization, manager) of the company; determined the requirements for candidates for the positions of general director (management organization, manager) and members of the company’s board; approved the terms of contracts with the general director and members of the board of directors of the company, including terms of remuneration and other payments.

The practice of corporate behavior should provide the executive bodies of the company with the opportunity to reasonably, conscientiously, solely in the interests of the company, effectively manage the current activities of the company, as well as the accountability of the executive bodies to the board of directors of the company and its shareholders. Companies are recommended to create a collegial executive body (board), whose competence should include resolving the most complex issues of managing the current activities of the company. The composition of the executive bodies of the company must ensure the most effective implementation of the functions assigned to the executive bodies. To achieve this, board members must be elected in accordance with a transparent procedure that provides shareholders with full information about these persons; when making a decision to transfer the powers of the sole executive body management organization (manager), shareholders must have complete information about the managing organization (manager). Executive bodies are recommended to act in accordance with the financial and economic plan of the company. The remuneration of the general director (management organization, manager) and members of the collegial executive body must correspond to their qualifications and take into account their real contribution to the results of the company's activities.

The practice of corporate behavior should ensure the timely disclosure of complete and reliable information about the company, including its financial position, economic indicators, ownership and management structure in order to ensure the possibility of making informed decisions by the company's shareholders and investors. Shareholders must have equal opportunities to access the same information. The information policy of a society must ensure the possibility of free and unburdened access to information about the society. Society must exercise control over the use of confidential and insider information.

The practice of corporate behavior must take into account the rights of stakeholders, including employees of the company, provided for by law, and encourage active cooperation between the company and interested parties in order to increase the assets of the company, the value of shares and other securities of the company, and create new jobs.

The practice of corporate conduct must ensure effective control over the financial and economic activities of the company in order to protect the rights and legitimate interests of shareholders. The Company is recommended to differentiate the competence of the bodies included in the control system over its financial and economic activities and the persons responsible for the development, approval, application and evaluation of the internal control system. It is recommended to establish effective interaction internal and external audit.

So, corporate behavior is a system of norms, principles and rules in accordance with which management and control is carried out in a company.

2. Forms of reorganization of a joint stock company

corporate reorganization behavior merger

The company may be voluntarily reorganized in the manner provided for in Art. 15-20 of the Federal Law “On Joint Stock Companies”. Reorganization can be carried out in five forms: transformation, separation, division, accession, merger. Other grounds and procedures for reorganizing the company are determined by the Civil Code of the Russian Federation and other federal laws.

The formation of the property of companies created as a result of reorganization is carried out only at the expense of the property of the reorganized companies. The company is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities.

When a company is reorganized in the form of the merger of another company with it, the first of them is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the merged company.

The reorganized company, after making an entry in the unified state register of legal entities about the beginning of the reorganization procedure, places it twice with a frequency of once a month in the funds mass media, in which data on state registration of legal entities and a message about their reorganization are published.

1 Reorganization of a joint stock company in the form of a merger

Article 16 of the Federal Law “On Joint-Stock Companies”: A merger of companies is the emergence of a new company by transferring to it all the rights and obligations of two or more companies with the termination of the latter.

During the merger process, one new joint stock company is formed to replace the merging joint stock companies. The essence of a merger is the unification of the capitals of several joint stock companies, primarily authorized capitals, and on this basis - the unification of all other capitals, including borrowed capital.

During the merger process, the size of the authorized capital of the merged company can be set in an amount greater or less than the sum of the authorized capitals of the merging companies, but the total capital of the former is always equal to the sum of the capitals of the latter.

During a merger, the shares of the merging joint-stock companies are canceled, and the merged joint-stock company simultaneously issues its own shares.

According to current legislation, a merger operation includes:

preparation by the boards of directors of the merging joint stock companies of a merger agreement;

preparation by the boards of directors of the merging joint stock companies of a transfer act for all rights and obligations, liabilities and assets of each joint stock company transferred in accordance with the merger agreement to the merging joint stock company;

conclusion of a merger agreement between the merging joint stock companies, which provides for:

merger order;

terms of merger;

the procedure for converting shares of the merging companies into shares (and other securities) united joint stock company;

approval by the general meetings of the merging joint stock companies of the merger agreement proposed by the boards of directors and the transfer act;

holding a joint general meeting of shareholders of the merged joint stock companies to make the following major decisions: on the creation of the merged joint stock company; on the termination of existence (liquidation) of the merging joint stock companies; on approval of the charter of the new joint stock company; on the selection of management bodies of the new joint-stock company;

state registration of a new joint-stock company and making an entry on the termination of the activities of the merging joint-stock companies.

When merging companies, shares of the company owned by another company participating in the merger, as well as own shares owned by the company participating in the merger, are cancelled. When companies merge, all rights and obligations of each of them are transferred to the newly formed company in accordance with the transfer deed.

Reorganization in the form of a merger is considered completed from the moment of state registration of the newly emerged legal entity, and legal entities reorganized in the form of a merger are considered to have ceased their activities from the simultaneous entry of a record of the termination of their activities.

2 Reorganization of a joint stock company in the form of merger

Article 17 of the Federal Law “On Joint-Stock Companies”: The merger of a company is the termination of one or more companies with the transfer of all their rights and obligations to another company.

During the merger process, a new joint stock company is not formed to replace the merging joint stock companies, since the merging companies merge into one of the existing companies. Economic essence accession is the same as a merger - it is a combination of capitals of several joint-stock companies. The difference lies only in the legal form of the association.

During the merger process, the size of the authorized capital of the acquiring company must be increased by the number of shares that must be issued for the conversion of shares of the acquired companies. Total capital of the acquiring company must be equal to the amount of capital of the merging joint stock companies available at the time of merger. Upon merger, the shares of the merging joint stock companies are canceled, and the merging joint stock company simultaneously or in advance issues required quantity your own shares.

When merging a company, the following are repaid:

) own shares owned by the acquired company;

) shares of the merging company belonging to the company to which the merger is being carried out;

) shares of the company to which the merger is being carried out belonging to the merging company, if this is provided for in the merger agreement.

If own shares belonging to the company to which the merger was carried out are not subject to redemption, such shares do not provide voting rights, are not taken into account when counting votes, and dividends are not accrued on them. Such shares must be sold by the company at a price not lower than their market value and no later than one year after their acquisition by the company, otherwise the company must decide to reduce its authorized capital by redeeming such shares.

An incorporation is essentially just a type of merger, since there is no economic difference between them. Their general features are:

all or all but one of the merged joint stock companies must be liquidated;

all rights and obligations of liquidated joint stock companies are transferred either to the newly created company or to the merging company;

in the case of cross-ownership of shares by companies participating in the merger, such shares are not converted, but redeemed. The reorganized company cannot receive at its disposal the shares it has placed;

reorganization of a legal entity in the form of merger and accession is carried out only on a voluntary basis, by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent documents;

The authorized capital of a joint stock company created as a result of a merger or accession may be more than the amount authorized capitals of commercial organizations participating in such reorganization.

The main difference between these two forms of reorganization is that during a merger, only the merged legal entities cease to exist, and during a merger, all legal entities that made the decision to merge cease to exist.

Reorganization of legal entities in the form of merger and accession is subject to state control by antimonopoly authorities. If, during a merger and accession, the amount of assets of commercial organizations exceeds 100 thousand minimum wages, it is necessary to obtain prior permission from the antimonopoly authority to carry out these actions. If the amount of assets of the merging commercial organizations exceeds 50 thousand minimum wages, the antimonopoly authority must be notified of the completed reorganization. If a merger or accession falling within the specified boundaries is carried out without the appropriate permission, it may be declared invalid in judicial procedure at the request of the antimonopoly authority.

In accordance with current legislation, the connection mechanism includes:

preparation by the boards of directors of the acquiring and being acquired joint-stock companies of a merger agreement;

preparation by the board of directors of the acquired joint stock company of a transfer act for all rights and obligations, liabilities and assets of the acquired joint stock company, transferred in accordance with the merger agreement;

conclusion of a merger agreement between the acquiring and merging joint stock companies, which provides for: the procedure for merger; terms of accession; the procedure for converting shares of the acquiring joint stock company into shares (and other securities) of the acquiring joint stock company; voting procedure at the joint general meeting of shareholders;

approval by the general meetings of the acquiring and being acquired joint-stock companies of the merger agreement proposed by the boards of directors;

approval by the general meeting of the acquired joint stock company of the transfer act;

adoption by the general meeting of the acquired joint stock company of a decision to liquidate the company;

holding a joint general meeting of shareholders of the acquiring and being acquired joint-stock companies to make the following major decisions on: introducing amendments and additions to the charter of the acquiring joint-stock company and its other regulatory documents; re-election of management bodies of the acquiring joint stock company (if this is established by the merger agreement);

state registration (making an entry) on the termination of the activities of the affiliated joint stock company.

The property is transferred according to the acceptance certificate and the transfer balance as contributions to the authorized capital. When one company merges with another, all rights and obligations of the acquired company are transferred to the latter in accordance with the transfer act.

3 Reorganization of a joint stock company in the form of division

Article 18 of the Federal Law “On Joint-Stock Companies”: The division of a company is the termination of a company with the transfer of all its rights and obligations to newly created companies.

As a result, the divided joint stock company ceases to exist, and new companies arise on its basis. When a company is divided, all its rights and obligations are transferred to two or more newly created companies in accordance with the separation balance sheet.

The division of a joint stock company is a process directly opposite to the process of merging joint stock companies. Merger is a form of unification of capitals, division is a form of decentralization of capitals, their disintegration into smaller parts.

The separation of capitals is just as necessary for the market as their merger. For example, excessive concentration of capital may make it unmanageable, and therefore there will be a need for division.

Characteristics divisions as a form of reorganization of a joint stock company are:

as a result of division, instead of one joint stock company, several new companies are formed; as a result of a merger, instead of several companies, one is formed;

all rights and obligations of the divided company are transferred to the new companies;

the divided joint stock company ceases to exist as a legal entity and transfers all its assets and liabilities to new legal entities. The list of property and liabilities transferred to new enterprises as a result of division is recorded in the separation balance sheet;

the amount of authorized capital of joint stock companies created as a result of division may be greater than the authorized capital commercial organization, reorganized through such division. However, the sum of the divided capitals cannot exceed the amount of the divided capital.

Due to the fact that the reorganized enterprise ceases its activities, when drawing up separation balance sheets, it is necessary for each structural unit to determine the size of the authorized capital, the composition of the founders (shareholders, participants) and the amount of their contribution attributable to this unit, to divide the obligations of each structural unit for transferring them to the legal successor. In this case, all rights and obligations are transferred to the newly established enterprises. The procedure for preparing documentation for the transfer of property of a structural unit is similar to that used for annexation and merger.

According to current legislation, the separation mechanism includes:

preparation by the board of directors of the divided joint stock company of a draft decision on its division into two or more new companies, which provides for: the procedure for division and creation of new companies; separation conditions; the procedure for converting shares of the divided joint stock company into shares, other securities, shares, shares, etc. of new companies;

preparation by the board of directors of the divided joint stock company of a draft separation balance sheet for all rights and obligations, liabilities and assets of the divided joint stock company, transferred in accordance with the decision on division into new companies;

approval by the general meeting of the divided joint stock company: of the decision on division proposed by the board of directors; decisions on the creation of new companies; the procedure for converting shares of the divided joint stock company; separation balance;

holding general meetings of shareholders and participants of each new company to make the following major decisions on: creating a new company; approval of the charter of the new company; selection of governing bodies of the new company;

state registration of new companies and making an entry on the termination of the activities of the divided joint stock company.

The reorganization of a joint-stock company in the form of division is considered completed from the moment of state registration of newly emerged legal entities, and the legal entity itself, reorganized in the form of division, is considered to have ceased its activities while simultaneously making a corresponding entry in the register of joint-stock companies.

4 Reorganization of a joint stock company in the form of a spin-off

Article 19 of the Federal Law “On Joint-Stock Companies”: The spin-off of a company is the creation of one or more companies with the transfer to them of part of the rights and obligations of the reorganized company without terminating the latter. With this form of reorganization, the enterprise does not cease its activities and becomes a founder (shareholder, participant) of a new legal entity. In this case, the legal successor of the transferred debts attributable to this division becomes a new legal entity created on the basis of a division separated from the enterprise.

Separation is, on the one hand, the complete opposite of annexation, and on the other hand, it is a form of separation, just as annexation is a form, or a special case, of merging. During the separation, capital is decentralized, and the number of independent market participants increases, but the divided joint stock company itself is still preserved and does not cease to exist, as in the case of separation.

The authorized capital of a joint stock company being reorganized by spinning off another company from it must not, as a result, exceed the value of those remaining at its disposal. net assets. The size of the authorized capital of the reorganized company should in any case be no more than the amount by which the transferred assets exceed the corresponding liabilities.

If mergers and acquisitions are a form of liquidation of legal entities, then division and separation are, on the contrary, a form of the emergence of new legal entities, new market participants. Spin-off is characterized by singular, or partial, succession, i.e. when only part of the rights and obligations of the divided joint-stock company is transferred to the legal successor. In practice, one of the main goals of reorganization in the form of spin-off is the property and legal separation of individual parts of joint-stock companies. This is one of the ways to separate branches and representative offices of joint stock companies into independent legal entities.

Divisions and spin-offs can also be used to decorporate a business in difficult financial and economic situations.

Unlike reorganization in the form of merger and accession, separation and division can be carried out not only voluntarily, but also compulsorily, i.e., by decision of a court or authorized government bodies. The need for a compulsory form arises, in particular, in case of violation of antimonopoly legislation. At the same time, it should be possible to organize an organizational and territorial breakdown of the structural divisions of the enterprise. There should not be a close technological connection between them. In particular, internal turnover between them should not exceed 30% of the total volume of products produced. There must be a possibility independent work on the market for newly established joint stock companies.

According to current legislation, the voluntary allocation mechanism includes:

preparation by the board of directors of the spin-off joint stock company of a draft decision of the general meeting on the spin-off of one or more spin-off companies, which provides for: the procedure for spin-off and creation of new companies; separation conditions; the procedure for converting shares of the spin-off joint stock company into shares, other securities, shares, shares, etc. of the spin-off companies;

preparation by the board of directors of the spin-off joint stock company of a draft separation balance sheet for all rights and obligations, liabilities and assets of the spin-off joint stock company, transferred in accordance with the decision on spin-off to the spin-off companies;

approval by the general meeting of the spin-off joint stock company: the decision on spin-off proposed by the board of directors; decisions on the creation of spin-off companies; changes in the charter; the procedure for converting shares of the spin-off joint stock company into shares and other securities, shares, units of the spin-off companies; separation balance;

holding general meetings of members of the spun-off companies to make the following major decisions on: creating a new company; approval of the charter of the new company; selection of governing bodies of the new company;

state registration of new companies;

state registration of changes in the charter of the spin-off joint stock company.

The election of the board of directors (supervisory board) of each company created through reorganization in the form of a spin-off is carried out by the shareholders of the reorganized company, among whom, in accordance with the decision on the reorganization of the company, ordinary shares of the corresponding created company must be placed, and by shareholders - owners of preferred shares of the reorganized company (which are at the time of making the decision on reorganization with voting shares in accordance with clause 5 of Article 32 of the Federal Law on JSC), among which, in accordance with the decision on the reorganization of the company, preferred shares of the corresponding company being created must be placed.

If, in accordance with the decision to reorganize the company in the form of a spin-off, the sole shareholder of the company being created will be the company being reorganized, the election of the board of directors (supervisory board) of the company being created is carried out by the shareholders of the company being reorganized. If the decision on the reorganization of a company in the form of a spin-off provides for the conversion of shares of the reorganized company into shares of the created company or the distribution of shares of the created company among the shareholders of the reorganized company, each shareholder of the reorganized company who voted against the decision on the reorganization of the company or did not take part in voting on the issue of reorganization of the company , must receive shares of each created company, providing the same rights as the shares of the reorganized company belonging to him, in proportion to their number.

Reorganization of a legal entity in the form of separation is considered completed from the moment of state registration of newly emerged legal entities and registration of changes in the authorized capital of the reorganized company, if any.

When one or more companies are separated from a company, a part of the rights and obligations of the company reorganized in the form of separation is transferred to each of them in accordance with the separation balance sheet.

5 Reorganization of a joint stock company in the form of transformation

Article 20 of the Federal Law “On Joint-Stock Companies”: The company has the right to transform into a limited liability company or into a production cooperative in compliance with the requirements established by federal laws. The company, by unanimous decision of all shareholders, has the right to transform into a non-profit partnership.

A joint stock company can be transformed into a limited liability company or a production cooperative. By unanimous decision of all shareholders, it also has the right to transform into a non-profit partnership.

Transformation of a joint stock company into: Limited Liability Company, Production Cooperative, Non-Profit Partnership. A joint stock company can be formed by transforming other types of commercial organizations in the manner prescribed for them.

When converting legal form legal entities, not only does the legal form of the organization change, but the scope of the rights and obligations of participants in reorganized companies often changes.

When making a decision to transform a society, it is necessary to weigh all the advantages and disadvantages of those organizational and legal forms into which it is intended to transform the society. In addition, it should be taken into account that the number of participants in a limited liability company should not be more than 50, and the number of members of a cooperative should not be less than five. A change in the type of joint stock company, for example, the transformation of an open joint stock company into a closed one or vice versa, cannot be considered a transformation.

The authorized capital of a joint stock company created as a result of transformation may be greater than the authorized capital of the transformed commercial organization.

According to current legislation, the mechanism for transforming a joint stock company into a limited liability company or into a production cooperative includes:

preparation by the board of directors of the joint stock company being transformed of a draft decision on its transformation into a new company, providing for: the procedure for transformation; transformation conditions; the procedure for exchanging shares of the transformed joint-stock company for deposits or shares of the new company;

preparation by the board of directors of the transformed joint-stock company of a transfer act for all rights and obligations, liabilities and assets of this joint-stock company, transferred in accordance with the decision on transformation into a new company;

approval by the general meeting of the transformed joint-stock company: a decision on the transformation proposed by the board of directors and the termination of the existence of the transformed joint-stock company; the procedure for exchanging shares of the transformed joint-stock company for deposits or shares of the new company; deed of transfer;

holding a general meeting of members of the new company to make the following main decisions on: creating a new company; approval of the charter of the new company; elections of governing bodies of the new company;

state registration of a new company and making an entry on the termination of the activities of the reorganized joint-stock company.

When transforming an enterprise from one legal form to another, documentation for the transfer of property must be completed in full at all stages of procedural work, starting from holding a general meeting of founders (shareholders, participants) and ending with drawing up an act for the new legal entity. In this case, the gear balance is not drawn up. The rights and obligations of the reorganized enterprise are transferred to the newly established enterprise in accordance with the transfer act.

Reorganization of a legal entity in the form of transformation is considered completed simultaneously from the moment of state registration of the termination of its existence and registration of the newly emerged legal entity.

The listed operations are forms or methods of reorganization of a joint stock company provided for by law. In the process of this reorganization, joint stock companies are necessarily either created or liquidated.

Bibliography

1.Civil Code of the Russian Federation (part one) No. 51-FZ dated November 30, 1994 (as amended on November 30, 2011).

.the federal law“On joint stock companies” No. 208-FZ dated December 26, 1995 (as amended on November 30, 2011).

.Zhdanov D.V. Reorganization of joint-stock companies in the Russian Federation / D.V. Zhdanov. - M.: Publishing house "Statut", 2001. - 303 p.

.Kirillov A.A. Corporate law. Course of lectures / A.A. Kirillov. - M.: Justitsinform, 2009. - 192 p.

.Code of Corporate Conduct. Corporate governance in Russia / Under general ed.. I.V. Kostikova. - M.: ZAO Publishing House "Economy", 2003. - 275 p.

.Savchuk S.V. Analysis of the main motives for mergers and acquisitions / S.V. Savchuk // Management in Russia and abroad. - 2002. - No. 5. - P. 45-67.

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Division and spin-off of a joint stock company

The division of a company is a form of reorganization, as a result of which the reorganized company ceases to exist as a subject of legal relations, two or more companies arise, to which the rights and obligations of the reorganized company are transferred in accordance with the separation balance sheet. Reorganization in the form of division is considered completed from the moment of state registration of the newly created companies. Unlike mergers and acquisitions, reorganization in the form of division may be forced.

The decision to split a joint stock company is made by the board of directors and then approved by the general meeting of shareholders. The following issues are submitted to the general meeting of shareholders of the JSC:

On reorganization in the form of division;

On the creation of new societies:

On the procedure for converting shares of the reorganized company into shares of the created company;

On the approval of the separation balance sheet, which determines the succession of rights and obligations of the reorganized and created companies.

In the event of a positive decision on reorganization issues, the general meetings of each company created during the reorganization make decisions on approving its charter and form management bodies.

Any shareholder who did not take part in the vote when deciding on the reorganization, as well as a shareholder who did not agree with the decision on the reorganization and voted against, automatically receives shares of all companies created during the division. Moreover, in all created societies he receives the same amount of rights as he had in the reorganized society. The blocks of shares provided to him in each of the created companies must be proportional to the number of shares that he had in the company before the reorganization.

The separation balance sheet is a document that reflects the distribution of all rights and obligations of the divided company between its legal successors. If the separation balance sheet does not make it possible to determine the legal successor of the reorganized company, legal entities created as a result of the reorganization bear joint liability for the obligations of the reorganized company to creditors. The issue of the legal successor of the right, the creditor of the obligations, remains unresolved.

Spin-off is a form of reorganization, as a result of which the reorganized company continues to exist, but at the same time part of the rights and obligations belonging to this company passes to new companies created during the reorganization. Upon spin-off, any number of new companies can be created. Reorganization in the form of spin-off is considered completed from the moment of state registration of the last of the companies created during the spin-off. Reorganization in the form of a spin-off can be carried out either voluntarily or compulsorily by virtue of instructions from state antimonopoly authorities.

When reorganizing in the form of a spin-off, the following issues are considered at the general meeting of shareholders:

On reorganization in the form of spin-off;

On the procedure and conditions for allocation;

On the procedure for converting shares of a reorganized company into shares of created companies;

On approval of the separation balance sheet.

After the general meeting of the reorganized company makes a decision on reorganization and resolves all issues, the general meeting of future shareholders of the newly created company approves a new charter and establishes the management bodies of the company.

The rights of shareholders are the same as during the division. The law provides for the possibility of acquiring shares of a new company created during reorganization by the reorganized company itself. In the event that the reorganized company itself becomes the sole shareholder of the spun-off company, shareholders who did not vote at the general meeting or voted against only have the right to demand the repurchase of shares by the company, and do not receive shares of the newly created company.

The rights and obligations of the reorganized company are transferred to the newly created company on the basis of the separation balance sheet.

In case of systematic implementation of monopolistic activities by a commercial organization occupying a dominant position, the court, at the request of the antimonopoly authority, has the right to decide to separate one or more organizations from their composition.

The systematic implementation of monopolistic activities is understood as the implementation by an economic entity of monopolistic activities identified in the manner prescribed by law more than two times in a row within three years.

A court decision on forced separation from a commercial organization is made for the purpose of developing competition if carried out in aggregate following conditions:

1. there is a possibility of separating the structural divisions of a commercial organization;

2. there is no technologically determined relationship between the structural divisions of a commercial organization;

3. there is a possibility independent activity on the relevant product market for legal entities created as a result of the reorganization.

The court decision on forced reorganization in the form of separation must be executed by the owner within the period determined by this decision. This period cannot be less than six months.

When reorganizing a joint stock company, the scope of rights belonging to shareholders should not be reduced. The main way to protect the rights of shareholders during the reorganization of a joint stock company is their right to leave this organization if they voted against the decision on reorganization with the receipt of property compensation. In accordance with paragraph 1 of Art. 75 of the Law “On Joint Stock Companies”, owners of voting shares have the right to demand that the company buy back all or part of the shares they own, if they voted against the decision on reorganization, or did not take part in voting on this issue at all.

When the issue of reorganization of the company is included in the agenda of the general meeting of shareholders, it is necessary to draw up a list of shareholders who may have the right to demand the redemption of their shares. The list of shareholders is compiled on the basis of data from the register of shareholders of the company.

The repurchase of shares by the company is carried out at the market value of these shares, while the market value of the shares acquired by the company is determined by an independent appraiser. A shareholder's request to repurchase his shares must be formalized in writing. In this request, the shareholder must indicate his place of residence and the number of shares, the redemption of which he requires. This requirement must be presented to the company no later than 45 days from the date of the decision to reorganize the company. After this period, within 30 days, the company is obliged to buy back the shares from the shareholder who made this demand.

Board of Directors ( supervisory board) of the company, within 50 days from the date of the decision to reorganize the company, must publish a report on the results of presenting demands and repurchasing shares from the company’s shareholders. After the repurchase of shares, appropriate changes are made to the register of shareholders of the company.

It should be noted that when a company buys back shares, the total amount of funds allocated for the buyback of shares cannot exceed 10% of the value of the company's net assets as of the date of the decision on reorganization. If the total number of shares repurchased by the company exceeds the specified amount, the shares are repurchased in proportion to the stated requirements. Shares purchased as a result of the reorganization of the company are cancelled.