The procedure for increasing the authorized capital of JSC. How to increase the authorized capital in a joint-stock company? Increase in authorized capital additional issue of ordinary shares
The issue and placement of which is carried out in addition to the previously issued shares. The main purpose of such an issue may be to increase the existing authorized capital of the company, its reorganization (some forms), as well as attracting new partners from the outside.
Additional shares are issued subject to the requirements of article No. 19 of the Federal Law "On the market valuable papers”, where all the main points are stipulated.
Decision to issue additional shares
To issue an additional issue, a decision of one of the bodies is required - supervisory board(board of directors) or shareholder meetings. It all depends on the conditions for placing an additional batch of securities, prescribed in the company's charter. There is no single requirement in the Law on Joint Stock Companies - one of two options is available, but it is better to make a decision at a meeting of shareholders - this way there will be fewer questions.
If a decision on an additional issue is made at a meeting of shareholders, the number of required votes is calculated taking into account the placed securities. If the assets are transferred on the basis of a closed subscription, then the consent of ¾ of the shareholders' votes is required for an additional issue. The same number of voters is also required if the additional issue was made by open subscription. At the same time, the issue volume should exceed a quarter of the already placed assets.
If the charter does not contain figures reflecting the exact number of shares, then the decision on the amount of declared assets can be made at the same meeting. The decision will be considered positive also if there are 2/3 votes. When making changes to the charter regarding an increase in the number of shares, it is necessary to register the changes made in the constituent document.
If the decision on the issue is made by the board of directors, then the votes of all participants in the meeting will be required. At the same time, if some directors leave, their votes may not be taken into account. At the same time, there is a practice of appealing the decisions of the board of directors in the absence of one of their directors during the voting (or the absence of his vote). At the same time, he could simply leave the SD until the moment of voting (at will).
What is contained in the decision to issue additional shares?
When issuing additional securities, the decision must contain the following items:
The total number of securities to be issued by the joint stock company. In this case, each type of issued share must be specified;
- method of placement;
- the cost of placement of assets, as well as the method of its calculation;
- features of making payments for shares placed by subscription;
- other conditions of issue.
The value of the assets issued is not required. Suffice it to say that the question of the share price will be decided later by the board of directors. In this case, the cost must be determined before the start of placement. The issuance of additional shares allows for more high price(it is forbidden to set lower than it was before). In this case, joint-stock company Emission appears, which is not subject to taxation.
Features of financing the issue of additional shares
When placing additional shares, financing is possible:
1. On account of the property of the joint-stock company. In such a situation, the basic requirements will coincide with those in the case of an increase in the nominal value. At the same time, assets should be distributed evenly to the total number of issued shares or taking into account the category of already existing owners. Placement of newly issued shares in such a way that they look like fractional ones is prohibited;
2. Money, securities or other property. In addition, payment for an additional issue can be made at the expense of property rights that have financial assessment. As an alternative to payment, there is an option to use the offset of financial claims against the JSC. In the latter case, the securities must be placed through a closed subscription. At the same time, the application of a monetary claim when paying for a new batch of shares must be provided for by an appropriate decision of the board of shareholders or the board of directors.
The charter of a joint-stock company may contain a number of restrictions regarding the types of property available for payment of an additional issue. In addition, a number of sources of capital cannot be used for these purposes. For example, it is forbidden to apply the right to lease land plots in special areas, the right to use land plots indefinitely, the right to lease land plots related to the forest fund.
There are also special requirements for paying for shares of investment funds.
If paid in cash, then required condition– monetary value of the board of directors. In this case, the result should not be more than the value of the valuation of the JSC's property. If an increase in the Criminal Code is required, then the involvement of an appraiser and the determination of all types of company property is mandatory. In particular, we are talking about those objects that will be used as payment for additional emission.
For the category of persons entitled to the priority purchase of shares, a special - reduced price of the security may be established. A deviation of no more than 10% of the value of the asset for other buyers is allowed. In this case, the lower limit of the price should not be less than the face value of the security.
It should be noted that recently the increase in the authorized capital due to the issuance of an additional issue with a negative balance net assets was prohibited. On the this moment according to letter No. 12-DP-03/12363 dated March 27, 2012, such an action is quite acceptable.
Options for placing additional shares and their registration
When issuing an additional batch of securities, there are three options for placing securities:
1. Transfer to existing shareholders. This is real only in the situation when the issue of additional assets is carried out at the expense of the property of the joint-stock company.
2. Through the conversion.
3. By subscription. This method is one of the most popular today (especially when placing additional shares in order to increase the authorized capital). The transfer of securities is made on a reimbursable basis. At the same time, an obligatory condition is the conclusion of agreements with shareholders on the sale and purchase of assets. Parties to the agreement - the issuer and.
In the case when potential buyers for additional shares of the company are already known, then we are talking about a closed subscription. If the future shareholders are not yet known, then the placement is made by open subscription.
Registration of an additional issue may be carried out simultaneously with the registration of a share prospectus. If the assets are placed by subscription, then registration of the prospectus is mandatory, except for a number of cases when at least one of the following conditions is met:
Securities are placed between professional investors. At the same time, the total number of buyers with a priority right to purchase assets should not exceed 500. This number may not include professional investors;
When converting securities into shares, the latter are placed among buyers who at the time of the transaction already were or are holders of JSC shares. At the same time, the number of such persons should not exceed 500 (excluding professional investors);
Securities are placed among persons whose number does not exceed 150 people. At the same time, qualified investors are not included in this number. In addition, the number of shareholders may be 500 people, if they do not include persons who at the time of placement were or already are shareholders of the issuer;
Assets are placed through a closed subscription among 500 people (this number does not include professional investors);
- the total amount of capital raised by the issuer by placing one or more issues within 365 days is not more than two hundred million rubles;
The total amount of capital raised by the issuer ( credit institution) by placing debt securities within 365 days not exceeding the amount of about four billion rubles;
The amount of capital contributed by each of the buyers does not exceed four million rubles. The number of shareholders does not include persons having the primary right to purchase securities. The total number of buyers (excluding professional investors) must not exceed 500.
If at least one of the above conditions is met, the prospectus of issued assets may not be registered. If a prospectus is registered, then the placement process must take place simultaneously with the disclosure of information.
Before making an additional issue, it is important to make sure that the amount of the authorized capital is fully redeemed. At the same time, all reports on the results of the issue of previous securities must be endorsed accordingly. Also, when making an additional issue, it is important to take into account the law on joint-stock companies, which specifies the rules for placing an additional share. In particular, additional placement may be carried out only within the limits of the number of announced securities. If the charter does not contain such information, then appropriate changes must be entered into it.
Preemptive rights to purchase additional shares
If the placement of shares is made by open subscription, then the current holders of the securities have the right of first priority to purchase shares. At the same time, the available amount of assets will be commensurate with what is already on hand. In the case when the placement is made through a closed subscription, the shares can be placed not only among the shareholders, but also among those persons who did not vote or voted against the issue. Until the expiration of the right to additional issue, placement of securities among other buyers is prohibited. In addition, those who have the right of first priority to buy out assets must be made aware of this.
In the case of an additional issue, a list of persons who have a priority right to purchase the company's securities must be drawn up. As a basis, the data of the register at the time of compiling the list of persons participating in the meeting or on the basis of a decision of the board of directors may be used. Next, notifications are drawn up and sent to selected persons (having the privilege of purchasing assets). In order to exercise your right to purchase, you must submit your application to JSC and attach a document confirming the payment.
Stages of issuing additional shares
Additional issue of securities consists of several main stages:
1. The beginning of the journey - making a decision on the future issue of additional assets. A meeting of shareholders can act as a body (we talked about this above).
2. The decision regarding the additional issue is being approved. In this case, we are talking about the development of a more detailed decision containing detailed information about the new issue of securities. It is extremely important that this decision be approved by all members of the board of directors of the company. In some cases, which are stipulated by the articles of association, such a right may be transferred to the meeting.
3. Procedure for registration of newly issued shares. The decision to conduct an additional issue must be registered in accordance with all the rules of the law. This operation is carried out by the Service of the Bank of Russia dealing with financial markets. Time for registration is given no more than 30 days from the date of transfer to the SBR FR. The application must be accompanied by all data on the legal and economic status of the JSC, as well as everything about the future issue of assets. The list of documents required for transfer is determined at the legislative level. Much here depends on the characteristics of the issuer, methods and nuances of asset allocation.
When registering securities, it is mandatory to disclose information that will allow both potential investors and shareholders to assess the feasibility of their own investments. In turn, the volume and procedure for disclosing data is also provided for by law. Sometimes it may be necessary to register an additional issue prospectus (as mentioned above).
4. Securities are placed in one of the ways - by subscription (open or closed), by converting assets into shares or distribution among shareholders, taking into account their rights and interests. Payment for the purchased assets can be made in any of the convenient forms - cash or non-cash. When buying securities, a contract of sale is drawn up. In the second case, special documents are drawn up, specified in the order of registration.
Additional shares are placed for a period that is agreed in the process of making a decision on the issue. The law defines the deadlines for subscription. It cannot last less than 30 days and more than a year. If the shares are distributed among the current shareholders, then the terms are not indicated, because the whole procedure takes no more than one day.
5. A report is being registered confirming the fact of the additional issue. Within one month, the issuing company undertakes to submit a report on the issue of additional assets to the state body dealing with registration issues. The decision to register the report is given no more than two weeks from the date of receipt of all papers for consideration.
If an incomplete package of documents was submitted or the deadlines for their transfer were violated, then registration may be denied. In addition, the reason for refusal may be the presence of errors or violation of the rules specified by law. If the SBR FR refuses to register an additional issue (for any of the reasons), then the issue can be considered failed.
To prevent this, when collecting all the documents and filling them out, it is important to be extremely careful in order to avoid refusal by the registration authorities. At the first failed attempt, it is important not to stop - if all the rules are followed, the re-registration of the issue will be successful.
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A change in the size of the authorized capital, being a significant corporate action, seriously affects the interests of the company's participants and creditors, and therefore is subject to a special, rather scrupulous legal regulation. The change can be expressed both in an increase and in a decrease in the authorized capital.
Increase in the authorized capital of a joint-stock company
The authorized capital of a joint stock company can be increased in two ways:
- 1) by increase in the par value of shares;
- 2) by placement of additional shares.
It is quite obvious that in the first case the total number of shares remains unchanged, in the second it changes upwards; both methods involve the placement of new shares.
Regardless of the way increase authorized capital not allowed, primarily, before his full payment (clause 2, article 100 of the Civil Code of the Russian Federation) (i.e., the company must first form capital up to set parameters and only then "think" about a possible increase).
So, in one of the cases, the court found that when creating a company, the size of its authorized capital was determined by the constituent documents in the amount of 900,000 rubles. In fact, the founders paid 13,400 rubles. Despite this, the board of directors of the company decided to increase the authorized capital of the company by issuing additional shares, which was registered. Guided by Art. 100 of the Civil Code of the Russian Federation, the court indicated that the decision of the board of directors of the company to increase the authorized capital of the company and issue additional shares until the authorized capital was paid in full could not be recognized as a document having legal force, and on its basis state registration of the issue of shares should not have been carried out. Based on this, the issue of shares was declared invalid (see clause 5 of the Review of the practice of resolving disputes related to the refusal of state registration of the issue of shares and the recognition of the issue of shares as invalid (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 23, 2001 No. 63)).
In addition, with an increase in the authorized capital at the expense of the company's property(We will talk about this option in more detail a little later) the amount by which capital is increased cannot exceed the difference between the value of net assets and the amount of the authorized capital and reserve fund of the company(paragraph 2, clause 5, article 28 of the JSC Law). The last restriction, due to the guarantee function of the authorized capital, is "linked" to the studied provisions of paragraphs 4–12 of Art. 35 of the JSC Law (see 7.1 of the textbook).
The guarantee function of the authorized capital, as mentioned, manifests itself indirectly, primarily through the ratio with the value of net assets. In this regard, the question of the legitimacy of increasing the authorized capital in the case when the value of net assets for the second and each subsequent financial year becomes less than the existing size of the authorized capital deserves special attention. The FFMS of Russia explains that in this case, "the terms of issue and circulation, as well as the terms of the issue of shares, the placement of which is aimed at increasing the authorized capital, are contrary to the legislation of the Russian Federation due to the obligation to reduce the authorized capital or make a decision on its liquidation. an increase can take place if "net asset value joint-stock company - the issuer, a certain according to his quarterly financial statements for the last certified reporting quarter, the reliability of which is confirmed audit report, turns out greater than or equal to its authorized capital"(Letter No. 05-OV-03/14492 dated September 13, 2005 "On increasing the charter capital of a joint-stock company whose net asset value is less than its charter capital").
Let's move on to the study of individual ways to increase the authorized capital.
Increase in authorized capital by increasing the par value of shares
This method is currently used quite rarely, which is understandable: an increase in the authorized capital, as a rule, aims to attract additional investment and (or) change the structure of the authorized capital, which is not achieved by increasing the nominal value of shares. The considered increase is designed mainly for situations where it is necessary to increase the investment attractiveness of the company or comply with the formal requirements for the minimum amount of authorized capital.
The solution to the issue of increasing the authorized capital by increasing the nominal value of shares is exclusive; it is considered adopted if it is voted for by simple majority votes of shareholders - owners of voting shares participating in the meeting (paragraph 2 of article 28, paragraph 2 of article 49 of the JSC Law).
To prevent a situation of prolonged non-execution of the decision general meeting shareholders to increase the authorized capital by increasing the par value of shares, the law provides for the possibility of introducing such a decision period after which it is not enforceable. However, this period ends from the moment of state registration of the relevant issue of securities (clause 8, article 49 of the JSC Law).
The increase is carried out only at the expense of the property of the joint-stock company(internal sources), so the shareholders do not make any additional contributions (clause 5, article 28 of the JSC Law). It is necessary to support O. M. Krapivin and V. I. Vlasov, who note that it is more accurate in this case to speak of an increase not at the expense of property, but at the expense of cost property of the company (because, we repeat, the categories "property" and "authorized capital" are not of the same order; property includes real things, the rights and obligations of the company, while the authorized capital is the monetary value of the outstanding shares; it is not a component of the property).
Range of property (own funds - free financial sources formed as a result of the activities of the company), at the expense of which it is allowed to increase capital, is outlined by the Issue Standards. This is the additional capital of a joint-stock company; fund balances special purpose according to the results of the previous year (except for the reserve fund and the employees' corporatization fund); in the presence of a special decision of the general meeting of shareholders - retained earnings of the company of previous years (clauses 4.1.3, 4.3.2, 5.3.2 of the Issue Standards). Without disputing the advisability of introducing such a list, it seems that it should be contained in acts of more high level(for example, in the Law on the RZB).
When the authorized capital is increased by the method under study, accommodation new shares(with a higher face value) by conversions in them shares with a lower par value.
Increase in authorized capital by placing additional shares
The solution of the issue of increasing the authorized capital in this way by the JSC Law refers to an alternative competences of the general meeting of shareholders, since the right to make such a decision can be granted by the charter board of directors(Supervisory Board).
The supreme governing body must decide on general rule, simple majority votes of shareholders - owners of voting shares participating in the meeting (the exceptions are two cases provided for in clauses 3, 4 of article 39 of the JSC Law, which we will discuss below) (clause 2 of article 49 of the Law on JSC), and the board directors (supervisory board) – unanimously by all members council, not counting those who left (clause 2, article 28 of the JSC Law). In passing, we note that it would be more logical, in our opinion, to include the issue of increasing capital by placing additional shares at the expense of the company's property (by analogy with increasing capital by increasing the nominal value of shares) under the exclusive competence of the general meeting of shareholders.
So, with regard to the issue of placing additional shares, it is permissible to redistribute the competence of management bodies. However, in two cases, the decision is imperatively taken only by the general meeting of shareholders: 1) when placing additional shares through a closed subscription; 2) upon placement by public subscription of additional ordinary shares that make up more than 25% of previously placed ordinary shares. It is in these situations that the risk for shareholders is the highest in terms of "dilution" of their share in authorized capital. In this regard, in both cases, the decision is not made simple, but qualified majority in 3/4 of the votes of shareholders - owners of voting shares participating in the meeting; moreover, the charter may provide for the need for a larger number of votes (clauses 3, 4, article 39 of the JSC Law). The provisions of the company's charter, which provide for broader powers of the board of directors (supervisory board) to make decisions on increasing the authorized capital in comparison with those provided for by the JSC Law, are not valid, and the decisions of the board of directors (supervisory board) based on them do not have legal force. 9 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19).
The decision of the general meeting of shareholders to increase the authorized capital by placing additional shares (as in the case of an increase in the par value of shares) may contain indication of the period after which it is not subject to execution; the course of the said period shall terminate from the moment of state registration of the relevant issue of securities (clause 8, article 49 of the JSC Law).
In the interest of protecting shareholder rights, there is a provision whereby additional shares can only be placed within the number of authorized shares established by the charter of the company; moreover, the determination of the number of declared shares and the rights granted by these shares is carried out exclusively by the general meeting of shareholders by a three-quarters majority of the votes of the owners of voting shares participating in the meeting (clause 4, article 49 of the JSC Law). Thus, the board of directors (supervisory board) may decide to increase the authorized capital by placing additional shares only within the limits of the number of authorized shares; the general meeting of shareholders has the right to make decisions on increasing the authorized capital and on introducing (changing) provisions on declared shares at the same time (clause 3, article 28 of the JSC Law).
Requirements to the content of the decision to increase of the authorized capital in the analyzed way, paragraph 4 of Art. 28 of the JSC Law: the number of additional ordinary shares and preferred shares of each type to be placed within the limits of the number of declared shares of this category (type) must be determined by the decision; placement method; placement price (at subscription) or the procedure for its determination; form of payment. This list is not closed in nature: the decision may also determine other conditions of placement (for example, the period of placement of shares, which should not exceed one year from the date of state registration of an additional issue, the procedure for concluding agreements during the placement of shares).
Increase in authorized capital by placing additional shares maybe(and should not, as in the first method!) carried out at the expense of the company's property(Clause 5, Article 28 of the JSC Law); when this opportunity is realized, the sources of the company's own funds are similar to the sources specified in relation to the increase in the authorized capital by increasing the par value of shares (clause 4.3.2 of the Issue Standards).
Way accommodation additional shares are largely determined by those at the expense of whose property the increase in the authorized capital is carried out:
1) when increasing the authorized capital at the expense of the company's property only possible way is distribution of additional shares among all shareholders, those. shareholder all categories (types), and in proportion to the number of shares of this category (type) they own. The fairness of this approach is based on the fact that the increase in the authorized capital is carried out without paying for additional shares by their purchasers.
It should be taken into account that the formation of fractional shares is not allowed here (clause 5, article 28, clause 1, article 39 of the JSC Law); but if during the distribution of additional shares per fractional share a part of the additional share proportional to the fractional share owned by the shareholder is distributed, then such distribution is not the formation of a fractional share (clauses 4.3.5, 4.3.6 of the Issue Standards);
- 2) when increasing the authorized capital at the expense of the property of persons, purchasing additional shares (directly or indirectly), the placement can take place in two ways:
- a) by open or closed subscriptions;
- b) through conversions into additional shares of previously placed emissive securities convertible into shares (meaning bonds and options; when preferred shares are converted without changing the par value, there is no increase in the authorized capital).
According to the results of the placement of shares in connection with an increase in the authorized capital amendments and additions are made to the charter. The legal grounds for their introduction are:
- – decision of the authorized body of the company, on the basis of which the placement of shares (issuance securities convertible into shares) is carried out;
- – a registered report on the results of the issue of shares (or an extract from the state register of emissive securities, if, in accordance with the law, the issue procedure does not provide for state registration of the report) (clause 2, article 12 of the JSC Law).
Please note that these provisions are exempt from general rule, in accordance with which amendments and additions to the charter are carried out by decision of the general meeting of shareholders (clause 1, article 12 of the JSC Law). The specificity is expressed in the fact that, firstly, a corporate act can be adopted not only by the general meeting of shareholders and, secondly, this corporate act is not enough to register changes and additions to the charter (because the issue must be completed).
By virtue of paragraph 2 of Art. 12 of the JSC Law, when placing additional shares, the number of declared shares of certain categories and types is reduced by the number of placed additional shares of these categories and types. Such a revision creates unjustified formal difficulties in the case when the company, by increasing its authorized capital, wishes to maintain the same number of authorized shares.
The interests of shareholders in the placement of additional shares and issuance securities convertible into shares (hereinafter referred to as securities) are ensured by giving them priority right acquisition of the named securities (Art. 40,41 of the JSC Law). In this way, object pre-emptive rights are, firstly, any additionally placed shares (irrespective of their category or type) and, secondly, placed issue-grade securities convertible into any stock.
It is quite obvious that the greatest "concern" among the participants of the company is the placement of securities by subscription, since it is with this method of placement that there is a possibility of changing the structure of the authorized capital, which can lead to the loss of shareholders of their positions in the company. Therefore, and also taking into account the essence of open and closed subscription, the pre-emptive right " works "when placing securities:
- a) by open subscription - anyway;
- b) by closed subscription - only if, when a shareholder voted against or did not take part in voting on the issue of the placement of securities (because by approving the terms of a closed subscription, the shareholder thereby agrees with the proposed new distribution of shares among the participants in the company).
With other methods of placement, there is no need for a pre-emptive right. In addition, in two cases, the pre-emptive right does not arise when subscribing either:
- 1) if securities are placed by a company with one shareholder(this is reasonable, since the shareholder alone decides on the issue of placement);
- 2) when placing securities by closed subscription only among the shareholders, if, at the same time, they have the opportunity to purchase an integer number of securities to be placed in proportion to the number of shares of the corresponding category (type) they own (i.e., when the terms of a closed subscription already include a mechanism similar to the institution of preemptive right). Along the way, it should be emphasized that if any of the shareholders refuses to purchase the securities due to him, they remain unplaced, unless otherwise provided by the decision on their placement (clause 6.4.8 of the Issue Standards).
So, the JSC Law clearly provides for cases of pre-emptive rights and itself stipulates exceptions to them. The adoption of imperative legislative regulation, taking into account the significance of the issue, is worthy of support from the standpoint of practical expediency, but, unfortunately, it is not harmonized with the requirements of the Civil Code of the Russian Federation in this regard. The fact is that according to paragraph 3 of Art. 100 of the Code, the pre-emptive right of shareholders to purchase shares additionally issued by the company can be established only by the charter, although only in cases provided for by the law on joint-stock companies; thus, the JSC Law does not take into account the aspect of self-regulation, which is explicitly expressed in the Civil Code of the Russian Federation.
The pre-emptive right to acquire placed securities is exercised in compliance with the following fundamental beginnings (principles):
- 1) principle identities of the category (type) of shares, held by the shareholder - the owner of the pre-emptive right, and the category (type) of the shares being placed (or shares into which the placed issue-grade securities convertible into shares can be converted). For example, when placing bonds convertible into ordinary shares, the pre-emptive right will not arise from the holders of preferred shares;
- 2) principle proportionality, in accordance with which securities are acquired in an amount proportional to the number of shares owned by the shareholder (of course, the corresponding category (type)). So, if a shareholder has 5% of the total number of all ordinary shares, then when placing additional ordinary shares, he has the right to insist on receiving 5% of "new" shares. The importance of observing the principle of proportionality (from the standpoint of maintaining a balance of interests of shareholders) prompted the legislator to allow the appearance fractional shares when exercising the pre-emptive right to acquire additional shares (clause 3, article 25 of the JSC Law). Note that the formation of fractional equity securities convertible into shares is not allowed.
The subject of pre-emptive right are exclusively shareholders; owners of emissive securities convertible into shares, as well as a company acquiring the right of ownership to shares in cases established by law, are not endowed with it. The circle of persons having the pre-emptive right is identified on a certain date and recorded in a special list (referred to as "the list of persons having the pre-emptive right to acquire additional shares and issuable securities convertible into shares"), compiled on the basis of data from the register of shareholders. The date on which the list is compiled depends on the competence of which management body of the company includes the issue of placement of securities:
- – if the decision to place securities is made general meeting of shareholders, then the list is drawn up on the date of drawing up the list of persons entitled to participate in this general meeting;
- – otherwise the list is compiled as of the date of the decision to place the securities.
The refusal to enter into the said list may be appealed by the shareholder to the court, which taking into account the date of entry of the relevant person in the register of shareholders may decide on the obligation of the company to include the shareholder in the list (subparagraph 2, paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 No. 19).
Procedure for exercising the pre-emptive right is as follows:
- 1) authorized persons must be notified of the possibility of exercising the pre-emptive right in the manner prescribed by the JSC Law for notification of a general meeting of shareholders (see clause 1, article 52 of the JSC Law). The notice must contain the following information:
- – on the number of placed securities;
- – on the price or the procedure for determining the price of their placement (including within the framework of exercising the pre-emptive right);
- – on the procedure for determining the number of securities that each authorized person is entitled to acquire;
- – on the procedure for submitting applications to the company for the acquisition of securities;
- - on the period during which such applications must be received by the company ( given term referred to as the duration of the pre-emptive right);
- 2) in order to exercise the priority right, the persons possessing it must submit a written application to the company on the acquisition of securities subject to the following rules:
- a) the application must indicate the name (name) and place of residence (location) of the applicant, as well as the number of securities to be acquired (since the exercise of the right may be both complete and partial);
- b) applications must be received by the society within the period of validity of the pre-emptive right, and this period may not be less than:
- - as a general rule - 45 days from the date of sending (delivery) or publication of the notice of the shareholder on the possibility of exercising the pre-emptive right;
- – if the placement price of securities in accordance with the placement decision (which does not provide for a specific placement price, but the procedure for determining it) is set after the expiration of the pre-emptive right, – 20 days from the date of sending (delivery) or publication of the notice to the shareholder. At the same time, this notice must additionally contain information about the term for payment for securities, which cannot be less than five business days from the date of disclosure of information on the placement price.
The period of validity of the pre-emptive right is of a preemptive nature: if it is missed, the pre-emptive right is terminated (subclause 5, clause 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 No. 19), and the application is not subject to satisfaction (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation of February 05 .2008 No. 581/08);
3) as a general rule payment for acquired securities must be made by the shareholder in advance - before the application is received by the company; Therefore, proof of payment must be attached to the application submitted. Concerning arbitrage practice proceeds from the fact that when submitting an application without providing evidence of payment for the securities that the shareholder intends to acquire, the pre-emptive right (as in the case of missing the deadline) is terminated (subparagraph 5, paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 No. 19).
It is clear that the presented provisions on payment are not applicable when determining the placement price of securities after the expiration of the pre-emptive right: here payment is already made after the application is submitted within the period specified in the notice to shareholders (which, as noted, cannot be less than five business days from the moment price disclosures).
A serious guarantee of the rights of shareholders is the provision according to which they can pay for securities in cash even when the placement decision provides for payment of securities in non-monetary funds. This norm makes it possible to prevent the company from "bypassing" the rules on pre-emptive rights by limiting the types of property used to pay for the placed securities.
Shareholders may also have a "privilege" in part payment amount. The placement price of securities to persons exercising the pre-emptive right may be lower than the placement price to other persons, however, by no more than 10% and not lower than the par value of additional shares (or shares into which placed emissive securities are converted) (clause 2 of Art. 36 and paragraph 2 of article 38 of the JSC Law, subparagraph 3 of paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19). It is worth remembering that the introduction of this "relaxation" is a right, not an obligation of society;
4) before the expiration of the preemptive right, the company is not entitled to place securities to persons who do not have a pre-emptive right. Thus, third parties may acquire the placed securities only after the shareholders have been given the opportunity to exercise their pre-emptive right.
The action of the pre-emptive right is imperative, the society cannot limit or suspend it. At preemptive right violation (including when placing securities among persons who do not enjoy the pre-emptive right, before the expiration date this right) the protection measures provided for in Art. 26 of the Law on the Securities Market (subparagraph 4, paragraph 12, paragraph 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 No. 19); in particular, a shareholder may apply to the court for recognition committed during the placement transactions are invalid. Thus, the consequences of a violation of the pre-emptive right to purchase additional shares and issue-grade securities convertible into shares and the pre-emptive right to purchase shares of a closed company are significantly different (because if the latter right is violated, the question of transferring the rights and obligations of the buyer, and not of the invalidity of the transaction ).
In addition, for the pre-emptive right to purchase placed securities, the law does not provide for a ban on concession(as it was done in relation to the pre-emptive right to purchase shares of a closed company alienated by shareholders). This gave rise to a discussion about the legitimacy of such a concession. Most authors come to the conclusion that the nature of the pre-emptive right is incompatible with the possibility of its assignment. This "...property right," points out M.I. Braginsky, "is of a personal nature, and therefore its transfer to other persons is not allowed" (Commentary to the Federal Law "On Joint-Stock Companies" with amendments and additions / ed. G S. Shapkina. - M.: CJSC "Legal House "Yustitsinform", 2002. - P. 190). rights to purchase additional shares.
At the same time, in the literature, the prohibition on the assignment of the preemptive right is sometimes criticized: for example, according to L.V. ... dispose of this latter at its own discretion, including its paid alienation to other participants" (Kuznetsova L.V. Preemptive rights in the civil law of Russia: monograph. – M.: Os-89, 2007. – S. 176–177).
Finally, the peculiarities of the placement of additional shares take place when it comes to certain joint-stock companies in which a block of shares that provides more than 25% of the votes at the general meeting of shareholders is in state or municipal ownership. The legislator in paragraph 6 of Art. 28 of the JSC Law and Art. 40, 41 of the Federal Law of December 21, 2001 No. 178-FZ "On the privatization of state and municipal property" establishes guarantees aimed at maintaining the share of the state or municipality in the authorized capital. These guarantees do not apply to all companies with the participation of public entities, but only:
- 1) open companies, created during the privatization process, moreover, provided that the block of shares of the specified size became the property of a public entity precisely in the process of creating a company on the basis of privatization legislation;
- 2) open companies, included in the list of strategic at the same time, regardless of the grounds for the receipt of the designated number of shares in the ownership of a public entity, unless otherwise provided by law.
The situation does not change (that is, the guarantees are valid) if the corresponding number of shares of the listed companies is transferred by the public owner to the unitary enterprise on the right of economic management (which means that not the public entity itself, but unitary enterprise), since in this case the shares continue to be in state or municipal ownership (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05.02.2008 No. 124 "On Some Issues in the Practice of Application by Arbitration Courts of Certain Provisions of Articles 40 and 40.1 of the Federal Law "On the Privatization of State and Municipal Property ””).
An increase in the authorized capital of the listed companies may be carried out if such an increase retains the size of the share of the state or municipality and unless otherwise provided federal law"On the privatization of state and municipal property". The normative act allows a reduction in the share of public education only if: a) a positive decision on this matter is made by an authorized state or municipal body (for companies included in the list strategic enterprises and joint-stock companies - by the President of the Russian Federation, for other companies - by the Government of the Russian Federation, an executive authority of a constituent entity of the Russian Federation or a body local government); b) the public entity maintains its share in the amount of at least 25% of the votes plus one voting share (or 50% of the votes plus one voting share - if the state or municipal property holds shares that provide more than 50% of the votes at the meeting of shareholders) (Art. .40). Moreover, when placing shares open societies through open subscription and implementation stock exchange their listing, as well as in the case of placement of shares of open companies outside the Russian Federation, the increase in the authorized capital and the determination of the size of the share of a public entity in the authorized capital are carried out by decision of the authorized government agency or local government (Art. 40.1).
Preservation of the size of the share is ensured by contributing to the authorized capital of state or municipal property or funds from the corresponding budget to pay for additionally issued shares (clause 1, article 40 of the Federal Law "On the privatization of state and municipal property"). Difficulties may arise in this case, for example, when a public entity agreed to the placement of additional shares, but for some reason did not pay for the shares due to it. Based on the formal interpretation of the law, the conflict of public and private interests that arises in this situation (for example, private individuals who have already acquired the shares being placed) should be resolved in favor of the former (which is probably not entirely fair).
- Cm.: Krapivin O. M., Vlasov V. I.
Photo by Boris Maltsev
The authorized capital (hereinafter referred to as the MC) is the amount fixed in the constituent documents of an organization that has passed state registration. The Criminal Code determines the minimum amount of property legal entity guaranteeing the interests of its creditors.
Authorized capital of the joint-stock company
According to Art. 99 of the Civil Code of the Russian Federation, the authorized capital of a joint-stock company (JSC) is made up of the nominal value of the company's shares acquired by shareholders. It is not allowed to release a shareholder from the obligation to pay for the company's shares.In accordance with Art. 34 of the Federal Law of December 26, 1995, No. 208-FZ “On Joint-Stock Companies” (hereinafter - Law No. 208-FZ), payment for shares distributed among the founders of a company upon its establishment, additional shares placed by subscription, can be made in cash, valuable papers, other things or property rights or other rights having a monetary value. The form of payment for shares is determined by the agreement on the establishment of the company, additional shares - by the decision on their placement.
It is impossible to carry out an open subscription for shares of the company until the authorized capital is paid in full.
When a JSC is established, all its shares must be distributed among the founders.
The increase in the authorized capital of a joint-stock company is regulated by the norms of Art. 100 of the Civil Code of the Russian Federation and Law No. 208-FZ.
JSC has the right to increase the authorized capital by increasing the par value of shares or issuing additional shares. An increase in the authorized capital of a joint-stock company is allowed after its full payment (Article 100 of the Civil Code of the Russian Federation, Article 28 of Law No. 208-FZ).
An increase in the authorized capital by placing additional shares may be carried out at the expense of the company's property. The increase in the authorized capital by increasing the nominal value of shares is carried out only at the expense of the property of the company (clauses 1 and 5 of article 28 of Law No. 208-FZ).
Amendments and additions to the charter of the company, including changes related to an increase in the authorized capital, are made based on the results of the placement of shares on the basis of a decision of the general meeting of shareholders to increase the authorized capital of the company or a decision of the board of directors (supervisory board) of the company, if in accordance with the charter society, the latter has the right to make such a decision (clause 2, article 12 of Law No. 208-FZ).
Changes and additions made to the charter of the company are subject to state registration in the manner prescribed by Art. 13 of Law No. 208-FZ.
Authorized capital of a limited liability company
Based on Art. 14 of the Federal Law of February 8, 1998 No. 14-FZ “On companies with limited liability” (hereinafter - Law No. 14-FZ) the authorized capital of an LLC is made up of the nominal value of the shares of its participants. The size of the authorized capital of the company must be at least 10,000 rubles. The value of the authorized capital and the nominal value of the shares of participants in an LLC are determined in rubles.Each founder of the company must pay in full his share in the authorized capital within the period determined by the agreement on the establishment of the company, or in the case of the establishment of the company by one person, by the decision to establish the company. The term of such payment should not exceed four months from the date of state registration of the company. At the same time, the share of each founder of an LLC can be paid at a price not lower than its nominal value (Article 16 of Law No. 14-FZ).
It is not allowed to release the founder of the company from the obligation to pay a share in its authorized capital.
In case of incomplete payment of a share in the authorized capital within the period determined in accordance with paragraph 1 of Art. 16 of Law No. 14-FZ, the unpaid part of the share passes to the company. This part of the share of the LLC must be realized in the manner and terms established by Art. 24 of Law No. 14-FZ.
An increase in the authorized capital of a company can be achieved at the expense of the property of the company, and (or) at the expense of additional contributions from the participants of the company, and (or), if this is not prohibited by its charter, at the expense of contributions from third parties accepted into the company (Article 17 of Law No. 14 -FZ).
The fact of the decision of the general meeting of participants to increase the authorized capital and the composition of the company's participants present at the adoption of this decision must be confirmed by notarization (clause 3 of article 17 of Law No. 14-FZ).
Increasing the authorized capital of the JSC through additional contributions from participants (shareholders)
1. An operation to increase the authorized capital by issuing additional shares.
- Accounting
To account 80, sub-accounts and analytical accounts are opened in order to ensure the recording of information on the founders of the company, types of shares and stages of formation of the authorized capital.
To account for settlements with founders, account 75 “Settlements with founders” is provided. Analytical accounting for it is maintained for each founder, except for accounting for settlements with shareholders - owners of bearer shares.
- income tax
Example 1
The authorized capital of the JSC is 3,500,000 rubles. and consists of 100 ordinary shares with a par value of 3,500 rubles. each. To raise additional funds, the Board of Directors decided to increase the authorized capital by 500,000 rubles.
The following entries will be made in the accounting records of the company:
Debit 75, subaccount 1 “Settlements on contributions to the authorized capital”, Credit 80, subaccount 1 “Declared capital” - 500,000 rubles. — reflects the debt of the founders on contributions to the authorized capital after the state registration of changes in the constituent documents;
Debit 80, subaccount 1 "Declared capital", Credit 80, subaccount 2 "Subscribed capital" - 500,000 rubles. — reflects the results of subscription for shares;
Debit 51 "Settlement account", Credit 75, sub-account 1 "Settlements on contributions to the authorized capital" - 500,000 rubles. — received cash to the current account in payment for additionally placed shares;
Debit 80, sub-account 2 "Subscribed capital", Credit 80, sub-account 3 "Paid-in capital" - 500,000 rubles. - reflects the amount of paid-in capital.
2. Operations to increase the authorized capital of the LLC at the expense of additional contributions in cash and fixed assets.
- Accounting
Cash and fixed assets received as a contribution to the authorized capital are not recognized as income for accounting purposes (clause 2 of the Regulation on accounting"Income of the organization" (PBU 9/99), approved by order of the Ministry of Finance of Russia dated May 6, 1999 No. 32n).
Fixed assets are accepted for accounting at their original cost (clause 7 of the Accounting Regulations “Accounting for fixed assets” (PBU 6/01), approved by order of the Ministry of Finance of Russia dated March 30, 01 No. 26n).
The initial cost of fixed assets contributed as a contribution to the authorized (share) capital is recognized as their monetary value, agreed by the founders (participants) of the organization (clause 9 PBU 6/01).
The amount of VAT recovered by a participant upon transfer of a fixed asset and indicated in the documents that formalize the transfer of a contribution to the authorized capital is attributed to an increase in additional capital (letters of the Ministry of Finance of Russia dated December 19, 06 No. 07-05-06 / 302, Moscow dated July 4, 2007, No. 19-11/063175).
When transferring a fixed asset as a contribution to the management company, a member of the company is obliged to restore the amount of VAT previously accepted by him for deduction on this fixed asset in proportion to its residual (book) value, excluding revaluation (clause 1 clause 3 article 170 of the Tax Code of the Russian Federation ). The specified amount of VAT is subject to tax deduction from an organization accepting a contribution to the authorized capital, provided that this fixed asset is registered and used to carry out operations recognized as objects of VAT taxation (paragraph 3, clause 1, clause 3, article 170, clause 11 article 171, paragraph 8 article 172 of the Tax Code of the Russian Federation).
- Corporate income tax
The fixed asset received as a contribution to the authorized capital is depreciable property and is accepted for accounting at the residual value, which is determined according to the data tax accounting transferring party on the date of transfer of ownership of this fixed asset (clause 1, article 256, clause 1, article 277 of the Tax Code of the Russian Federation).
Example 2
The authorized capital of LLC is increased by 1,000,000 rubles. through additional contributions from participants. As a contribution to the Criminal Code, the first participant (legal entity) transfers the fixed asset, the monetary value of which, agreed by the participants and confirmed by an independent appraiser, is 500,000 rubles, the second participant ( individual) contributes cash in the amount of 500,000 rubles. The share of each participant is 50% of the authorized capital. The nominal value of the share of each participant increases by the amount of his additional contribution (500,000 rubles). According to accounting and tax accounting, the residual value of the fixed asset of the transferring party is 500,000 rubles. The amount of VAT recovered by the participant upon transfer of the fixed asset is 90,000 rubles. This amount is not recognized as a contribution to the authorized capital of the LLC. The organization uses the accrual method for income tax purposes.
In the accounting of the organization, an increase in the authorized capital due to additional contributions of participants (in cash and the transfer of fixed assets) must be reflected as follows (Table 1).
| Table 1. Accounting in an LLC for an increase in the authorized capital due to additional contributions from participants | ||||
| Debit | Credit | Amount, rub. | primary document | Content of operations |
| 08 | 75–1 | 500 000 | The decision of the general meeting of participants of the company, | Received a fixed asset from the first participant as a contribution to the management company |
| 19–1 | 83 | 90 000 | The act of acceptance and transfer of fixed assets | Reflected the amount of VAT recovered by the participant upon transfer of the fixed asset |
| 50 | 75–1 | 500 000 | Decision of the general meeting of participants in the company, incoming cash order | Received funds from the second participant as a contribution to the UK |
| 01 | 08 | 500 000 | The act of acceptance and transfer of fixed assets | |
| 68-VAT | 19–1 | 90 000 | The act of acceptance and transfer of fixed assets | The amount of VAT recovered by the participant upon transfer of the fixed asset was accepted for deduction |
| 75–1 | 80 | 1 000 000 | Documents confirming the state registration of changes in constituent documents | Increased authorized capital (500,000 rubles x 2) |
- Increase in the authorized capital at the expense of the property of the organization
- Increase in authorized capital due to:
- Corporate income tax
Example 3
The general meeting of participants of the LLC decided to increase the authorized capital by 500,000 rubles. by increasing the nominal share of participants at the expense of part of the retained earnings of the previous year. Registration of changes in the charter was made on October 25, 2016. On this date, the following entry must be made in the accounting of LLC: Debit 84, Credit 80 - 500,000 rubles. (increased UK).
Example 4
On November 25, 2016, the meeting of shareholders decided to increase the authorized capital of the joint-stock company by 6,000,000 rubles. by increasing the nominal value of shares at the expense of additional capital. At the time of the decision, share premium was 7,800,000 rubles. Registration of changes in the charter was made on December 5, 2016. On this date, the following entry must be made in the organization's accounting records: Debit 83, Credit 80 - 6,000,000 rubles. (increased UK).
Increase in the authorized capital at the expense of contributions to the authorized capital of the property of third parties
The authorized capital of an LLC can be increased at the expense of contributions from third parties accepted into the company (clause 2, article 17 of Law No. 14-FZ).The procedure for such an increase is established in Art. 19 of Law No. 14-FZ.
The general meeting of LLC participants may decide to increase the Criminal Code on the basis of a third party's application for admission to the company and making a contribution (paragraph 1, clause 2, article 19 of Law No. 14-FZ). Simultaneously with this decision, decisions must be made on the adoption said person to the company, amending the charter of the LLC in connection with an increase in the authorized capital, determining the nominal value and size of the share of a third party, as well as changing the size of the shares of the company's participants. At the same time, the nominal value of the share that is acquired by each third person admitted to the company must not exceed the value of his contribution (paragraph 3, clause 2, article 19 of Law No. 14-FZ).
The contribution must be made by a third party within 6 months from the date of the adoption of these decisions (paragraph 5, clause 2, article 19 of Law No. 14-FZ).
Shares in the authorized capital of an LLC can be paid in cash (clause 1, article 15 of Law No. 14-FZ).
If the nominal value of the share of a member of the company in its authorized capital, paid in non-monetary funds, is more than 20,000 rubles, an independent appraiser must be involved in order to determine the value of this property. The nominal value of the share paid for by such non-monetary funds cannot exceed the amount of the valuation of the said property, determined by an independent appraiser (paragraph 2, clause 2, article 15 of Law No. 14-FZ).
According to paragraphs 1, 2, paragraph 4 of Art. 12, art. 13 of Law No. 14-FZ, amendments to the charter of an LLC are made by decision of the general meeting of participants in the company and are subject to state registration, which is carried out on the basis of the relevant application of the company in the manner prescribed by Art. 17, 18, 19 of the Federal Law of August 8, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”.
This application and other documents for state registration of changes in connection with an increase in the authorized capital of the company, the admission of a third party to an LLC, determining the nominal value and size of the share of this person and changing the size of the shares of participants in the LLC, as well as documents confirming the full contribution of the third party , must be submitted to the Federal Tax Service of Russia within a month from the date the contribution was made by a third party on the basis of his application (clause 2.1, article 19 of Law No. 14-FZ, clause 1 of the Regulations on the Federal tax service, approved by the Decree of the Government of the Russian Federation of September 30, 2004 No. 506).
- Accounting
- value added tax
When transferring a fixed asset as a contribution to the authorized capital, a member of the company is obliged to restore the amount of VAT previously accepted for deduction on this fixed asset in proportion to its residual (book) value, excluding revaluation (clause 1 clause 3 article 170 of the Tax Code RF).
The amount of VAT restored for payment to the budget is indicated in the documents that formalize the transfer of the fixed asset. This amount of VAT is subject to tax deduction from an organization accepting a contribution to the authorized capital, provided that this fixed asset is registered and used to carry out operations recognized as objects of VAT taxation (paragraph 3, clause 1, clause 3, article 170, clause 11 article 171, paragraph 8 article 172 of the Tax Code of the Russian Federation).
An invoice for deduction is not required, and the purchase book registers documents that formalize the transfer of property (clause 14 of the Rules for maintaining a purchase book used in calculating value added tax, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137) .
- Corporate income tax
Example 5
Based on the decision of the general meeting of founders, the LLC increases its authorized capital at the expense of a contribution from a third party in the amount of 150,000 rubles. As a payment for the deposit, a third party transferred funds to the settlement account of the organization. In accounting, the operation to increase the authorized capital at the expense of the specified source must be reflected as follows (Table 2).
Example 6(the contribution of a third party to the authorized capital exceeds the nominal value of the share). The participants of the company are two legal entities, each of which owns a 50% share of the authorized capital. The UK before the increase is 300,000 rubles. The nominal value of the share acquired by a third party agreed upon by the participants is 200,000 rubles. According to the accounting and tax records of the transferring party, the residual value of the fixed asset is 250,000 rubles. The cost of the fixed asset contributed as payment for the share by a third party, according to an independent appraiser, is 250,000 rubles. The charter of an LLC does not prohibit the admission of third parties to the company. The amount of VAT recovered by the participant upon transfer of the fixed asset is 45,000 rubles. This amount is not recognized as a contribution to the authorized capital of the LLC.
Based on the application of a third party (legal) to accept it into the company and make a contribution, if a fixed asset is made as a contribution, an increase in the authorized capital must be reflected in the LLC's accounting as follows (Table 3).
| Table 3. Accounting for an increase in the authorized capital in an LLC if the contribution is made by a third party as fixed assets and exceeds the par value of the share | ||||
| Debit | Credit | Amount, rub. | primary document | Content of operations |
| On the date of receipt of the asset | ||||
| 08 | 75–1 | 250 000 | Received a fixed asset as a share capital contribution from a third party | |
| 19 | 83 | 45 000 | The act of acceptance and transfer of fixed assets | The restored amount of VAT not paid into the UK is reflected when transferring the fixed asset to the UK |
| 01 | 08 | 250 000 | The act of acceptance and transfer of fixed assets | Fixed asset accepted |
| 19 | 68-VAT | 45 000 | The act of acceptance and transfer of fixed assets | The restored amount of VAT was accepted for deduction upon transfer of the fixed asset to the management company |
| As of the date of registration of changes in the charter of LLC | ||||
| 75–1 | 80 | 200 000 | Certificate of state registration of changes in constituent documents | Increased authorized capital |
| 75–1 | 83 | 50 000 | Accounting reference-calculation | The amount of the excess of the value of the contribution over the nominal value of the share (250,000 rubles - 200,000 rubles) is attributed to additional capital. |
(the cash contribution of a third party to the authorized capital exceeds the nominal value of the share). The charter of an LLC does not prohibit the admission of third parties to the company. The authorized capital of the company before the increase is 100,000 rubles. The contribution of a third party is 250,000 rubles, the nominal value of the share this participant— 150,000 rubles.
In LLC accounting, an increase in the authorized capital must be reflected as follows (Table 4).
| Table 4. Accounting in an LLC for an increase in the authorized capital if the cash contribution of a third party exceeds the nominal value of the share | ||||
| Debit | Credit | Amount, rub. | Primary Document | Content of operations |
| 51 | 75–1 | 250 000 | Decision of the general meeting of participants in the company, bank statement on the current account | Received funds from a third party |
| 75–1 | 80 | 150 000 | Certificate of state registration of changes in | |
| 75–1 | 83 | 100 000 | Accounting reference-calculation | Reflected as additional capital is the amount of the excess of the contribution received over the nominal value of the third party's share in the authorized capital (250,000 rubles - 150,000 rubles) |
Increase in the authorized capital by converting bonds into shares of the company
Joint-stock companies have another source of increasing their authorized capital - the placement of equity securities convertible into shares. The relevant transactions are regulated by Law No. 208-FZ and Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market” (hereinafter Law No. 39-FZ).In the case under consideration, two issues of securities are actually carried out: convertible bonds and shares into which the bonds will be converted.
We note that in accordance with Art. 24 of Law No. 39-FZ, each issue is subject to registration.
In accounting, transactions for the redemption of bonds and their conversion into shares must be reflected as follows:
redemption of bonds - Debit 66 "Settlements on short-term loans and borrowings", Credit 76 "Other debtors and creditors"; payment to investors who refused to convert bonds into shares - Debit 76, Credit 51; contributions of investors who have used the right to convert, in payment for shares - Debit 76, Credit 75.
After the state registration of changes in the constituent documents of the joint-stock company related to the increase in the authorized capital by issuing additional shares that are placed through conversion, an entry should be made for the amount of the increase in the authorized capital: Debit 75; Credit 80. In this case, the difference between the par value of bonds convertible into shares and the par value of shares placed by means of conversion is attributed to additional capital: Debit 75; Credit 83 "Additional capital".
- Corporate income tax
Example 8
The joint-stock company issued interest-bearing bonds convertible into shares with a par value of 1,500 rubles. in the amount of 10,000 pcs. in the amount of 15 million rubles. The maturity of the bonds is 2 years, the maturity date is September 15, 2016. In accordance with the terms of the issue, investors have the right to redeem the issued bonds by converting them into shares. One bond with a nominal value of 1500 rubles. converted into one ordinary share with a par value of 1200 rubles. As of September 15, 2016, these bonds are listed on account 66 “Settlements on short-term loans and borrowings”. The owners of 7500 bonds took advantage of the conversion right. Changes in the charter were registered on 10/25/16.
The following entries will be made in the accounting of JSC (Table 5).
| Table 5. Accounting in a joint-stock company of an increase in the authorized capital due to the conversion of bonds into shares of a company | |||
| Debit | Credit | Amount, rub. | Content of operations |
| As of the maturity date of the bonds (09/15/16) | |||
| 66 | 76 | 15 000 000 | Bonds redeemed (RUB 10,000 x RUB 1,500) |
| 76 | 51 | 3 750 000 | Cash paid out to investors (2500 RUB x 1500 RUB) |
| 76 | 75–1 | 11 250 000 | Bonds converted into shares (7500 RUB x 1500 RUB) |
| As of the date of registration of amendments to the charter (10/25/16) | |||
| 75–1 | 80 | 9 000 000 | Increased authorized capital (7500 rubles x 1200 rubles) |
| 75–1 | 83 | 2 250 000 | The difference between the sale and par value of shares (11,250,000 rubles - 9,000,000 rubles) is attributed to additional capital. |
For one reason or another, the company may need to increase the authorized capital (hereinafter referred to as the MC). There are three ways to increase the CC. Consider the procedure for increasing the UK at the expense of the property of the company.
2. Formation of a package of documents for registration:
the articles of association of the company new edition or amendments to the charter (2 copies);
decision or minutes of the general meeting of participants on the increase in the authorized capital and amendments to the charter;
a copy of the balance sheet for the previous year, certified by the seal and signature of the head;
calculation of the value of the company's net assets.
3. Payment of state duty.
For state registration of changes made to the constituent documents of a legal entity, it is necessary to pay a state duty in the amount of 800 rubles. (4,000 rubles x 20%) (paragraphs 1.3 of paragraph 1 of article 333.33 of the Tax Code of the Russian Federation).
4. Submission of a set of documents to the tax office.
A set of documents can be submitted directly to tax office(in person or through a representative by a notarized power of attorney) or to a multifunctional center - MFC (in person or through a representative by a notarized power of attorney). A set of documents can be sent by mail with a declared value and a description of the attachment.
5. Receipt of documents.
State registration changes are made within a period of no more than five working days from the date of submission of documents to the registration authority (clause 1, article 8 of Law No. 129-FZ).
The JSC had one shareholder. The second shareholder enters and contributes money to the authorized capital. What comes first, the decision on the participation of the second shareholder or the registration of a cash contribution?
Answer
Initially, a decision is made to increase the authorized capital of the JSC by placing additional shares, which are paid by a third party.
After that, the payment for the shares and the registration of the additional issue take place (see the recommendation below).
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A non-public joint-stock company has the right to carry out an additional issue of shares only through a closed subscription ( ; ). PJSC has the right to conduct both open and closed subscription for shares of additional issue.
Decision to increase the authorized capital
Regardless of the funds used to place additional shares, the decision to increase the authorized capital of the company by placing additional shares is made by:
– general meeting of shareholders (the decision is made by a majority of votes);
- the board of directors (supervisory board) of the company (if it is provided for by the charter) (the decision is made unanimously);
- the sole founder (shareholder) (if the company has one founder (shareholder)).
In some cases, shares may be placed only by decision of the general meeting of shareholders, adopted by a 3/4 majority of the votes of shareholders - owners of voting shares participating in the general meeting (unless the charter establishes a different ratio). Such cases include placement:
– additional shares through closed subscription;
– ordinary shares (constituting more than 25% of previously placed ordinary shares) through an open subscription.
If the charter of the company does not contain mandatory provisions on declared shares, then a decision to increase the authorized capital may be made:
- by the general meeting of shareholders (by the sole founder (shareholder)) - simultaneously with the decision to amend the charter regarding declared shares;
- by the board of directors (supervisory board) - only after a decision has been made to include provisions on declared shares in the company's charter.
As a result of the placement of additional shares, the authorized capital of the company is increased by the amount of the nominal value of the placed additional shares. At the same time, the number of authorized shares is reduced by the number of additionally placed shares of certain categories and types.
Grounds for amending the charter
Based on the results of the placement of additional shares, it is necessary to amend the company's charter. The basis for this is:
- decision of the general meeting of shareholders (sole founder (shareholder)) or decision of the board of directors (supervisory board) to increase the authorized capital of the company;
– a registered report on the results of the issue of shares;
- extract from State Register emissive securities (if the state registration of the report on the results of the issue of shares is not provided for by law).
The composition of the documents that must be submitted for registration of amendments to the charter, and the requirements for their execution are given in the Law of August 8, 2001 No. 129-FZ *.
For state registration of changes in the charter, you need to pay a state duty (, subparagraph, paragraph 1 of article 333.33 of the Tax Code of the Russian Federation). Its dimensions are given in.
State registration of an additional issue of shares
An additional issue of shares is subject to state registration. The decision to issue securities must be approved no later than six months from the date of the decision to place them.
An organization must submit documents for registration no later than three months from the date of approval of the decision to release. If the state registration of an additional issue of shares is accompanied by the registration of a securities prospectus, the documents must be submitted within one month from the date of approval of this prospectus.
