The institute of affiliated persons is a fairly new phenomenon both in theoretical and practical terms. The article reveals the very definition and scope of its application.
Attention will also be paid to the accounting rules for this category, responsibility for their failure to comply, as well as the relationship between the main and subsidiaries.
Affiliates. Concept and types
The phrase itself appeared in Russian in the 90s. For the first time the concept of an affiliated person was mentioned in 1992 in the appendix to the Decree of the President of the Russian Federation. It was about investment funds. In a broad sense, affiliation implies proximity to something, since the English verb to affiliate, from which the word comes, is used in the sense of "join, connect."
Also, this term can be interpreted as joining a membership. Affiliated persons influence each other to some extent, whether it is economic or economic activity. In general, they represent a certain group.
This term found legislative reflection in 1995, and the official definition appeared only in 1998 as a result of amendments to the Law on Competition. Affiliates are individuals or businesses that can influence the business activities of other people or companies. There are some aspects in accordance with which the entity is considered to be controlling in relation to the organization. Affiliated persons of OJSC are citizens or entrepreneurs:
- Owning more than 20% of voting shares. At the same time, affiliated persons of the Joint Stock Company have the ability to influence the decision-making process in this organization.
- Owning more than 50% of voting shares.
It is believed that an individual is able to have a significant impact on the organization, having the ability to participate in decision-making, even without controlling its activities.
The legislative framework
Article 4 of the Federal Law, as mentioned above, defines what affiliates are. In addition, the normative act deciphers the possible composition of this category. The list of affiliates primarily includes entities closely associated with the control mechanism.
These may include holders of a large block of voting shares, direct participants in the enterprise management process. Affiliation implies, as a rule, the possibility of unilateral influence of one side of economic activity on another.
It should be emphasized that we mean relations that are not of a property, but of a managerial nature. Property dependence can rather be defined as a consequence, and not at all a condition for the emergence of dependence on control. Not the last role in this matter is played by relationships of a kindred nature.
Classification
According to the Competition Law, affiliates may have:
1. Enterprises:
One of the owners of this legal entity;
Member of any governing body (for example, the board of directors);
Persons having at their disposal at least 20% of the total number of decisive shares;
An organization in which the subject in question acquires the right to dispose of the number of votes in excess of 20% of the total;
The party exercising the powers of the sole body.
2. An individual doing business:
Citizens who belong to the same group as the subject;
An organization in which the entrepreneur in question has the right to dispose of 20% or more of the total number of votes expressed by decisive shares, contributions, shares in the authorized capital.
3. Entrepreneurs participating in financial and industrial groups:
Members of supervisory bodies or boards of directors;
Collegial management structures;
Entities that exercise the powers of the sole divisions of the group.
Scope of this category
The category of affiliated persons can often be found not only in the theoretical, but also in the practical part of the activities of entrepreneurs. Meanwhile, as practice shows, many do not have a clear idea about this category. This, in turn, often causes quite serious errors in the process of economic activity of the subject. The term "affiliates" is predominantly associated with corporate law. It is most often used for:
- the process of identifying persons knowingly having an interest in the actions of the company, which presumably will lead to the conclusion of the transaction;
- identification of directors having the right of a decisive vote in relation to a transaction of interest to them, which an open joint-stock company with more than a thousand participants intends to make;
- determining the list of entities about which information must be provided to the business entity;
- the process of identifying persons, the provision of information about which the joint-stock company is obliged to provide;
- determination of the list of participants who overcame the 30% milestone in the course of the acquisition of shares in OJSC; in this case, certain procedures must be followed, the course of which is regulated by law.
Relationship between the parent company and the subsidiary
How do affiliates interact? An example of such a relationship can be considered by taking the predominant (main) company and the subsidiary (dependent on the main). When creating the latter, the company gets ample opportunities to increase the volume of its activities. The main difference between the main company and branches is legal independence.
Responsibilities
Affiliates have not only rights and opportunities. By virtue of their status, they have a number of responsibilities. First of all, they are charged with informing the public about their shares. This must be done in writing and with specified details (exact number, types of papers, etc.).
Information must be received within a certain period of time from the date of acquisition of shares in ownership. Despite the fact that such persons are not liable before the law in connection with the failure to provide the necessary information within the allotted time, certain sanctions against them still exist.
If, through the fault of affiliated persons, the joint-stock company has suffered losses of any nature (for example, property damage), then compensation for the entire amount of damage caused will act as a punishment (in accordance with Article 15 of the Civil Code of the Russian Federation).
Accounting responsibilities of businesses
The company is required to maintain a list of affiliates. The list is mandatory submitted to the relevant authorities responsible for the regulation of this market. Antimonopoly legislation provides for the imposition of a fine for violation of existing rules for providing the necessary information. The same rules apply to the list of affiliated persons of the LLC. Lists should be publicly posted on a web page.
Such requirements are quite understandable. Such information is in great demand within a certain procedure for concluding transactions in which affiliates participate. These include, in particular, agreements with interest. A logical question arises: "Is a closed joint-stock company obliged to submit information about affiliated persons?"
After all, it, as a rule, does not engage in public offering of securities. Accordingly, the rule relating to an open joint-stock company does not fully apply to a CJSC. Nevertheless, his duties include keeping records of the subjects in question, albeit in an arbitrary form. If a CJSC carries out a public placement of bonds, then it is also obliged to publish the register of affiliated persons on the website on the Internet.
Accounting procedure
If we take any example of a list of affiliates, then the list will contain the following information:
1. Company name (short and full), postal address.
2. Surname and initials of the subject, address of residence (for individuals);
3. Grounds for being an influential party, the date of occurrence of these grounds.
Responsibility
There are different types of punishment for violating the prescribed order.
1. Administrative responsibility. It occurs if the information is provided incompletely or in violation of the deadlines specified in the legislation.
2. Tax liability. It occurs in relation to related parties and concerns unreasonable price adjustments that run counter to the real situation on the market. If, according to the results of the audit, it turns out that the value of the completed transaction deviates from the existing one on the trading floor by more than 20%, this fact entitles the regulatory authority to charge additional tax and penalties. In this case, the collection is made in a non-acceptance manner.
3. Civil liability may also be imposed for violation of the procedure for carrying out transactions, the participants of which are affiliated persons.
Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies", hereinafter referred to as the JSC Law).
For an LLC, the obligation to maintain a list of affiliates is not directly established by law. However, the legislation establishes the obligation of an LLC to keep lists of the company's affiliates (paragraph ten, clause 1, article 50 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies", hereinafter referred to as the LLC Law). From this rule, we can conclude that the LLC also needs to maintain lists of its affiliates.
The obligation to keep a list of its affiliates is also established for unitary enterprises (clause 1, article 28 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises").
A public or non-public joint stock company that has carried out (carried out) a public offering of bonds or other securities must disclose the lists of its affiliates (Article 92 of the JSC Law, paragraph five, clause 69.1, paragraph five, clause 69.4, clause 73.2 of the Bank's Regulations of Russia dated December 30, 2014 N 454-P "On Disclosure of Information by Issuers of Equity Securities", hereinafter referred to as the Information Disclosure Regulation). The form of the lists is established by Appendix No. 4 to the Regulations on Information Disclosure.
These joint-stock companies must publish on the Internet page a list of affiliated persons compiled as of the end date of the reporting quarter. The list shall be posted on the Internet no earlier than the end date of the reporting quarter and no later than 2 business days from the end date of the reporting quarter (clause 73.3
The list of JSC affiliates must be available on the Internet for at least 3 years from the date of expiration of the period established for its publication (clause 73.4 of the Information Disclosure Regulation).
Non-public joint-stock companies that do not carry out public placement of bonds or other securities, as well as limited liability companies and unitary enterprises are not required to use the form established by the Bank of Russia for maintaining lists of affiliates. Accordingly, such legal entities may maintain free-form lists of their affiliates. The obligation to publish the list of affiliated persons for such JSCs, as well as LLCs and unitary enterprises has not been established.
At the request of a joint-stock company, the Bank of Russia has the right to release it from the obligation to disclose or provide information provided for by the legislation of the Russian Federation on securities (Article 92.1 of the JSC Law, Article 30.1 of Federal Law No. 39-FZ of April 22, 1996 "On the Securities Market "). Such joint-stock companies are also entitled to keep lists of their affiliates in free form.
Attention
JSC and LLC are obliged, at the request of the shareholder and member of the company, respectively, to provide them with access to the lists of affiliates or provide copies of the list (clauses 1 and clause 2 of article 91 of the Law on JSC, clause 4 of article 50 of the Law on LLC).
Fulfillment by a JSC of the obligation to disclose a list of its affiliates does not relieve the JSC from the obligation to provide such a list to a shareholder of the company at his request (see Resolution of the Arbitration Court of the Volga-Vyatka District dated September 29, 2016 N F01-4143/16).
In addition to the specified procedure, special rules for maintaining the list of affiliated persons and providing the information contained therein to authorized bodies are established for:
Credit institutions (Regulation of the Bank of Russia No. 307-P dated July 20, 2007 "On the Procedure for Keeping Records and Presenting Information on Affiliates of Credit Institutions", Bank of Russia Ordinance No. 4212-U dated November 24, 2016 "On the List, Forms and Procedure for Compiling and Presenting reporting forms of credit institutions to the Central Bank of the Russian Federation");
Insurers (Instruction of the Bank of Russia dated November 30, 2015 N 3860-U "On the forms, terms and procedure for compiling and submitting reports by insurance companies and mutual insurance companies to the Central Bank of the Russian Federation").
A legal entity has the right to establish additional rules for maintaining a list of affiliates in its internal documents.
The information in the list of affiliates must be up-to-date, that is, reliable at any time. Accordingly, legal entities are encouraged to consider affiliates as soon as they become aware that a person has become affiliated with it or, conversely, has ceased to be affiliated with it. In this regard, changes to the list of affiliates must be made at the moment when circumstances arise with which the legislation associates changes in the composition of affiliates (see also the decision of the Fifth AAC dated 10.07.2013 N 05AP-6046/13).
Affiliated persons of a JSC are obliged to notify the JSC in writing about the shares of the company they own, indicating their number and categories (types), no later than 10 days from the date of acquisition of shares (clause 2, article 93 of the JSC Law).
Prior to 01/01/2017, LLC affiliates were required to notify LLC in writing of their shares or parts of shares not later than within ten days from the date of acquisition of the share or part of the share, which, taking into account the shares in the authorized capital of the LLC owned by these persons, grant the right dispose of more than 20% of the total number of votes of LLC participants (paragraph two of clause 6.1 of Article 45 of the LLC Law as amended before 01/01/2017). From 01/01/2017, the amendments made by Federal Law N 343-FZ of 07/03/2016 came into force, and in the new edition of Art. 45 of the LLC Law there is no mention of affiliated persons. The legislation does not regulate the procedure for the formation of lists of LLC affiliates.
At present, the responsibility of LLCs and JSCs for failure to fulfill the obligation to keep records of their affiliates and store lists of the company's affiliates has not been established.
08.02.2018
Events. The Central Bank adjusted the dictionary. New concepts have appeared in the program document of the Bank of Russia. Yesterday the policy document of the Bank of Russia was published, describing plans for the development and application of new technologies in the financial market in the coming years. The main ideas, concepts and projects have already been announced by the regulator in one way or another. At the same time, the Central Bank introduces and discloses new terms, in particular, RegTech, SupTech and “through identifier”. Experts note that these areas have been successfully developing in Europe for a long time.
08.02.2018
Events. The State Duma issued a pass to Russia for capital. It was decided to repeat the one-time business amnesty. The State Duma of Russia adopted on Wednesday in the first, and a few hours later - in the second reading, a package of bills initiated by Vladimir Putin on the resumption of the capital amnesty. The new act of “forgiveness” was announced as the second stage of the 2016 campaign, which was then presented as a one-time campaign and was actually ignored by the business. Since the attractiveness of the Russian jurisdiction and trust in its law enforcement officers have not increased over the past two years, now the stake is placed on the thesis that capital must be returned to the country because it is worse for them abroad than in Russia.
07.02.2018
Events. Control and supervision are customized. Business and authorities compared approaches to reform. The results and prospects of the reform of control and supervisory activities were discussed yesterday by representatives of the business community and regulators as part of the Russian Business Week under the auspices of the RSPP. Despite a 30% decrease in the number of scheduled inspections, businesses complain about the administrative burden and call on the authorities to respond more quickly to entrepreneurs' proposals. The government, in turn, plans to revise the mandatory requirements, reform the Code of Administrative Offenses, digitize and accept reports in the "one window" mode.
07.02.2018
Events. Issuers will add transparency. But investors are waiting for additions to the meetings of shareholders. The Moscow Exchange is preparing changes to the listing rules for issuers whose shares are on the highest quotation lists. In particular, companies will be required to create special sections on their websites for shareholders and investors, the maintenance of which will be controlled by the exchange. Large issuers already meet these requirements, but investors consider it important to fix these obligations in the document. In addition, in their opinion, the exchange should pay attention to the disclosure of information to shareholders' meetings, which is the most painful issue in the relationship between issuers and investors.
07.02.2018
Events. The Central Bank of Russia gets a grasp of advertising. The financial regulator has found a new field for supervision. The honesty of financial advertising will soon begin to be assessed not only by the Federal Antimonopoly Service, but also by the Central Bank. Starting this year, as part of behavioral supervision, the Bank of Russia will identify advertisements of financial companies and banks that contain signs of violations and report this to the Federal Antimonopoly Service. If banks receive not only fines from the FAS, but also recommendations from the Central Bank, this may change the situation with advertising in the financial market, experts say, but the procedure for applying the Central Bank's supervisory measures in the new area has not yet been described.
06.02.2018
Events. Not by accent, but by passport. Foreign investments under the control of the Russians will be left without international protection in the spring. A government bill depriving Russian-controlled foreign companies and persons with dual citizenship of the protection of the foreign investment law, in particular, guarantees of freedom to withdraw profits, will be adopted by the State Duma of Russia in early March. The document does not recognize as foreign and investments through trusts and other trust institutions. Russian-controlled structures investing in strategic assets in the Russian Federation, the White House is still ready to consider foreign investors - but for them, as before, this only means the need to coordinate transactions with the Foreign Investment Commission.
06.02.2018
Events. Banks are not given to state structures. FAS Russia intends to limit the expansion of the public sector in the financial market. The Federal Antimonopoly Service has developed proposals to limit the purchases of banks by government agencies. The FAS plans to amend the law "On Banks and Banking Activities" and is currently working on them with the Central Bank (CB). An exception may be the reorganization of banks, ensuring the availability of banking services in areas that need it, as well as issues of the country's security. The head of the Central Bank, Elvira Nabiullina, has already supported this initiative.
06.02.2018
Events. Online audit was given a chance. IIDF is ready to support remote checks. Online auditing, hitherto a side branch of this business, which was carried out mainly by unscrupulous companies, has received support at the state level. The Internet Initiatives Development Fund invested 2.5 million rubles in AuditOnline, thus recognizing the prospects of this area. However, market participants are confident that there is no legitimate future for online audits - remote audits are contrary to international auditing standards.
05.02.2018
Events. It is recommended to refrain from legitimate transactions. The Central Bank of Russia considered the "hidden trust management" unethical. The Bank of Russia warns professional participants against using some popular, but not entirely ethical practices in relation to clients in the stock market. The schemes described in the letter of the regulator lie in the legal plane, so the Central Bank limited itself to recommendations. But in fact, the regulator is testing the application of a motivated judgment, the right to use which has not yet been legally approved.
05.02.2018
Events. Absorption will be less entertaining. The Central Bank of Russia encourages banks to reduce lending to M&A transactions. The idea of the Central Bank to encourage banks to lend not to mergers and acquisitions of companies, but to the development of production takes on concrete features. The first step could be to instruct banks to form increased reserves for loans issued for M&A transactions. According to experts, this will reduce such lending, but in order for bank resources to go to the development of production, additional stimulus measures will be required.
All JSCs are required to account for their affiliates and disclose information about them. They are obliged to disclose this information by providing it at the request of the shareholder and including it in an explanatory note to the company's accounts. To do this, JSCs independently develop a procedure for accounting, storing information about their affiliates. In addition, public JSCs and non-public JSCs that have publicly placed bonds or other securities are required to publish lists of affiliates on the Internet on a quarterly basis.
Information is disclosed in the form of a list, its form is approved by the Bank of Russia. For failure to fulfill these obligations, including disclosure of information not in full or disclosure of false information, JSC may be held administratively liable. The amount of the fine can reach 700 thousand rubles.
Who is recognized as an affiliate of JSC
Affiliates of a JSC are individuals and legal entities capable of influencing the activities of the JSC.
The list of criteria on the basis of which it is considered that a person is capable of exerting influence is given in Art. 4 of the Law of the RSFSR on competition.
The scheme of JSC affiliates (in a simplified form) is as follows (Article 4 of the Law of the RSFSR on Competition):
In addition, the Law of the RSFSR on Competition highlights such a criterion as the participation of a legal entity in a financial and industrial group.
However, it should be noted that this criterion applies only to those associations of legal entities that were created before 07/05/2007 in accordance with the Federal Law of 11/30/1995 N 190-FZ "On Financial and Industrial Groups". After this date, legal entities are merged in accordance with the norms of the Civil Code and their affiliation is not subject to assessment according to this criterion.
How to attribute a person to an affiliate based on the "group of persons" criterion
In practice, a group of persons is often understood as persons who act in a common economic interest.
The “group of persons” criterion is the broadest affiliation criterion and the most difficult in terms of application.
Conventionally, this criterion can be divided into two groups:
base group
That is, a group formed on the basis of the connection of persons with society itself, while the connection of these persons with society can be divided into two types: formed on control and on other grounds (clauses 1 - 7, part 1, article 9 of the Law on Protection competition).
The connection of a person with an AO is based on the control:
- the controlling person of the JSC, that is, the person having the right to dispose of more than 50% of the votes of the total number of votes of the shareholders of the JSC.
— the person at whose proposal a member of the body of the JSC was elected (appointed): the director of the JSC and (or) more than 50% of the members of the board of directors or the board were elected (appointed);
Thus, any shareholder of a JSC who owns at least 2% of shares can be assigned to a group of persons according to this criterion, if the director of the JSC or more than half of the board of directors or the board of directors is elected (appointed) at the meeting at his suggestion;
— the director of the JSC or another person exercising the functions of the sole executive body of the JSC;
— persons who have the right to give mandatory instructions to JSCs, for example, beneficial owners who, by virtue of an agreement or the company’s charter, have the opportunity to determine decisions made by an economic entity, including determining the conditions for its business activities (Clarifications of the FAS Russia dated 07.09.2010<Ответы на вопросы по применению Федерального закона «О защите конкуренции»>).
The relationship of a person with a joint-stock company is formed on a different basis:
— a legal entity that has more than 50% the same composition of the management board (another collegial executive body) or board of directors as the JSC;
- spouses, parents (including adoptive parents), children (including adopted children), full and half brothers and sisters of individuals, persons affiliated (included in the same group) with JSC, provided that they are independently included in a group of persons with another legal entity (Letter of the Federal Antimonopoly Service of Russia dated March 20, 2008 N АЦ/5969).
United group
That is, a group that unites several groups on the basis of the presence of a single member in each group (clause 8, part 1, article 9 of the Law on Protection of Competition).
Persons belonging to a group of persons with a person belonging to a group of persons with JSC;
An example of a scheme for a single group of persons according to the specified attribute
Persons belonging to a group of persons with a person whose group of persons includes a person belonging to a group of persons with JSC.
This chain of persons is unlimited, the main thing is that in each group of persons there should be one common person. At the same time, it breaks off on a person who does not have his own group of persons (Letter of the Federal Antimonopoly Service of Russia dated March 25, 2008 N АЦ / 6366).
An example of applying the criterion in practice
JSC "Progress" is recognized as an affiliate of JSC "Perspektiva" because:
The group of persons 1 JSC "Progress" includes:
Ivanov A.A. as director of the company;
Ivanova S.V. as the wife of Ivanov A.A.
Group of persons 2 LLC "Razvitie" includes:
Ivanova S.V. as the sole participant of Razvitiye LLC;
Ivanov A.A. as the husband of Ivanova S.V.;
Petrov I.A. as director of Razvitiye LLC;
Petrov N.I. as the son of Petrov I.A.
The group of persons 3 JSC "Perspektiva" includes:
Petrov N.I. as director of JSC "Perspektiva";
Petrov I.A. as the father of Petrov N.I.
Thus, since in each group there is a person who is included in one and the other group, such groups are combined into a single group.
An example of a scheme for a single group of persons according to the indicated attribute:
In addition, the group of persons includes a business company in which the members of a single group control in aggregate more than 50% of the votes (clause 9, part 1, article 9 of the Law on Protection of Competition, clause 3 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 N thirty).
What rights and obligations does a JSC have to record, store and disclose information about affiliates
JSC is obliged to keep records of its affiliates (clause 4, article 93 of the JSC Law). In addition, it is obliged to disclose this information by providing it at the request of the shareholder and including it in an explanatory note to the company's accounts (clause 11 clause 1 article 91 of the JSC Law, clause 27 RAS 4/99). In addition, public JSCs and non-public JSCs that have publicly placed bonds or other securities are required to publish lists of affiliates on the Internet on a quarterly basis (clauses 69.2, 69.4 and 73.3 of the Regulations on Information Disclosure by Issuers of Equity Securities).
For non-fulfillment of its duties, JSC may be held administratively liable:
for lack of information about affiliated persons - a fine of 200 to 300 thousand rubles. (part 1 of article 13.25 of the Code of Administrative Offenses of the Russian Federation);
for non-disclosure of information about the affiliated persons of the JSC, as well as the provision of information not in full, inaccurate information, misleading information - a fine of 500 to 700 thousand rubles. (part 1 of article 15.19 of the Code of Administrative Offenses of the Russian Federation);
for PJSC and non-public joint-stock company that placed bonds - a fine from 700 thousand to 1 million rubles. (part 2 of article 15.19 of the Code of Administrative Offenses of the Russian Federation).
In order to properly fulfill these obligations, we recommend that you independently develop an internal document of the JSC that establishes the procedure for identifying, recording and storing information about its affiliates.
What should contain the procedure for identifying, recording and storing information
On the person responsible for identifying, recording and storing information about affiliates.
This may be a director, since, as a general rule, it is he who bears all responsibility for documentation in the company as the person who carries out the current management of the company's activities (clause 1, article 69 of the JSC Law).
However, this responsibility can be transferred to another person, such as a lawyer.
About the frequency of updating information.
On the procedure for identifying and collecting information.
Method 1. Sending a request to shareholders, directors, members of the collegial executive body and the board of directors.
The request is made in an arbitrary form and must contain questions, the answers to which will allow the company to identify its affiliates in accordance with the criteria.
Example
Request
JSC "Progress" in order to fulfill the obligation stipulated by the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies", asks you to provide the information necessary to identify affiliates, namely:
About all legal entities in which you (for individuals - your spouses (parents, children, brothers and sisters)) are a participant owning more than 50% of the authorized capital, or have the opportunity to dispose of more than 50% of the votes of the total number of votes.
About all legal entities to which you (for individuals - your spouses (parents, children, brothers and sisters)) have the right to issue mandatory instructions.
About all legal entities in which you (for individuals - your spouses (parents, children, brothers and sisters)) are a director or other person exercising the functions of the sole executive body.
About all legal entities in which, on the basis of your proposal (for individuals - a spouse (parent, children, brother and sister)) a director was elected (appointed) or more than 50% of the members of the board of directors or collegial executive body were elected (appointed).
Besides:
For individuals: about all legal entities in which you are a member of the collegial management body or board of directors.
For members of legal entities: about all its shareholders (participants).
The request is sent to all shareholders, directors, members of the collegial executive body and the board of directors.
If they do not provide information, then in the future the JSC will be able to hold them liable for losses incurred as a result of the lack of information about affiliated persons, in accordance with Art. 53.1 of the Civil Code of the Russian Federation.
In addition, an affiliated person is liable for failure to provide information about the acquisition of JSC shares by him (clause 3, article 93 of the JSC Law).
Method 2. Independent research of open sources, such as the Unified State Register of Legal Entities, Internet pages on which joint-stock companies disclose information, trade registers of foreign countries.
An example of independent research of open sources
We request an extract from the register of shareholders.
We write out all shareholders:
— Ivanov A.A. — 21% of ordinary shares;
- Razvitie LLC - 51% of ordinary shares;
— JSC Perspektiva — 24% of ordinary shares;
— Petrov I.A. — 4% of ordinary shares.
We include everyone in the list of affiliates, except Petrov I.A., since he does not fall under the affiliation criterion "JSC shareholders with the right to dispose of more than 20% of the total number of votes."
Since there are legal entities among affiliates, it is necessary to collect information about their members and directors.
For this:
- we will request an extract from the Unified State Register of Legal Entities in relation to LLC "Razvitie" and JSC "Perspektiva";
- from the statement on JSC "Perspektiva" we can only get information about the director. Information about shareholders can be obtained only by sending a request to the company.
From the resulting extracts we see that:
- in Razvitie LLC, the director and participant owning a 25% share is Ivanova S.V.
Another participant is the Private Joint Stock Company with limited liability "Innovation Development", registered in the Republic of Cyprus - with a 75% share in the authorized capital;
- JSC "Perspektiva": director - Petrov N.I.
We will request information about the Private Joint Stock Company Limited "Innovation Development" from the register of companies of the Republic of Cyprus, for this we will use the online service https://efiling.drcor.mcit.gov.cy/drcorpublic/.
Free of charge using this service, you can get information only about directors, to obtain information about shareholders, you will need to pay a fee.
From the information received from the register on the Private Joint Stock Company with Limited Liability "Innovation Development" we see that:
— director — Sidorov M.G.;
— shareholders: Ivanova E.A. - 53% of the shares, Sidorov M.G. - 47% of the shares.
Based on the data obtained, we include in the list of affiliates: Ivanova A.A., Razvitie LLC, Perspektiva JSC, Innovation Development Private Joint Stock Company Limited, Ivanova S.V., Petrova N.I., Sidorova M.G., Ivanov E.A.
How JSC discloses information about affiliates
A JSC discloses information about affiliates depending on whether it is public or non-public and whether it has issued bonds or other issuable securities (clauses 69.3 and 69.4 of the Regulations on Information Disclosure by Issuers of Equity Securities).
All AO disclose information about affiliated persons by:
inclusion of information about them in the explanatory note to the financial statements (clause 27 PBU 4/99).
Non-public JSCs are required to publish annual accounting (financial) statements if they have more than 50 shareholders (clause 69.5 of the Regulation on Information Disclosure by Issuers of Equity Securities);
providing information to its participants at their request (clause 11 clause 1 article 91 of the JSC Law).
Public and non-public JSCs that issued bonds (other issue-grade securities) additionally disclose information about affiliated persons by publishing a list on the Internet on a quarterly basis on the website of one of the distributors of information on the securities market (clauses 2.5 and 73.3 of the Regulations on Information Disclosure by Issuers of Issue-grade Securities) .
The list of authorized distributors can be found at http://www.cbr.ru/finmarket/issue/.
If the last day falls on a weekend or non-working day, the list is published on the next business day following it (clause 2.17 of the Regulations on Information Disclosure by Issuers of Equity Securities).
How to make a list of JSC affiliates and reflect information about them in this reporting form
The form is approved by the Bank of Russia only for those JSCs that are required to disclose information about affiliates on pages on the Internet.
However, we recommend that this form be used by all AOs as it is easy to complete and maintain. The only thing is, if the JSC is not obliged to disclose information on the page on the Internet and does not do this voluntarily, then information about the address on the Internet can be removed from the title page of the form.
How to fill out the JSC Affiliate List Form
Information is entered into the form in accordance with the name of the columns.
Wherein:
in column 4 "Basic(s) by virtue of which (by which) a person is recognized as affiliated", the criterion of affiliation must be indicated;
An example of filling out the list of affiliates
JSC "Progress" found that:
LLC "Razvitie" owns 50% of the shares;
Ivanova S.V. is the director of Razvitiye LLC.
Therefore, JSC Progress, when filling out the list of affiliates, indicates Ivanov S.V. as an affiliate and in the column indicates the following criterion - the person belongs to the group of persons to which this legal entity belongs.
columns 6 and 7 are filled in only if the person owns the shares.
If not, then put a dash.
How to make changes to the list of affiliates
In order to make changes to the list of persons, you need to:
provide new information in I;
fill out section II, in which:
- indicate the essence of the changes, the dates when they occurred, and the date when they were included in the list;
- indicate what information about the affiliate was contained in the list before the changes and what became contained after.
An example of reflecting information about changes in the list of affiliates
The shareholder holding 51% of the shares sold his shares.
N p / p | Full corporate name (name for a non-profit organization) or surname, name, patronymic (if any) of the affiliate | Location of a legal entity or place of residence of an individual (indicated only with the consent of an individual) | Ground(s) by virtue of which(which) a person is recognized as affiliated | Date of foundation(s) | Participation share of an affiliated person in the authorized capital of a joint-stock company, % | Share of ordinary shares of the joint-stock company owned by an affiliate, % |
| Ivanova Svetlana Valentinovna | The person belongs to the group of persons to which the given legal entity belongs | 10.08.2014 |
Good afternoon!!
According to paragraph 2 of Art. 93 of the JSC Law, a company is obliged to keep records of its affiliates and submit reports on them in accordance with the requirements of the legislation of the Russian Federation.
Affiliated persons, not later than 10 days from the date of acquisition of shares by them, are obliged to notify the company in writing about the shares they own, indicating their number and categories (types).
If the company receives such notification, and also if the company becomes aware from other sources of changes in the composition of affiliates, it is obliged to make changes to the list of affiliates and publish them on its website within the time period established by the Regulations.
Changes are made, as a rule, in the same form as the list of affiliates itself. At the same time, for each change, the date of introduction is indicated, the content is described, and information about the affiliate is provided before and after the amendments are made. If the grounds for affiliation cease, an explanation is given that the person has ceased to be affiliated with the company.
The term for disclosure (publication) of changes to the list of affiliated persons of a joint-stock company is two business days from the date of making changes. The text of the amendments must be available on the Internet page for at least three months from the date of expiration of the period set for its publication on the web, and if it is posted there after the expiration of this period, from the date of publication on the Internet.
Recall that changes to the list of affiliates, as well as the lists themselves, in accordance with clause 8.1.1 of the Regulations, are required to disclose all open joint-stock companies, as well as those closed joint-stock companies that have carried out a public offering of bonds or other securities.
Responsibility for non-provision (non-disclosure) of information
Article 15.19 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) establishes administrative liability for violation of the requirements of the law regarding the presentation and disclosure of information on the securities market by both holders of securities and issuers, as well as other market participants.
So, according to part 3 of Art. 15.19 of the Code of Administrative Offenses of the Russian Federation, failure to provide (non-disclosure) or violation by the owners of securities, as well as affiliated persons of joint-stock companies and persons who, in accordance with federal law, are recognized as interested in the transaction by the company, of the procedure and deadlines for the provision (disclosure) of information provided for by federal laws and adopted in in accordance with other normative legal acts, entails an administrative fine in the following amounts:
- for citizens - from 1000 to 2000 rubles;
- for officials - from 10,000 to 20,000 rubles;
- for legal entities - from 300,000 to 500,000 rubles.
Even more severe liability is envisaged for issuers who have violated the procedure and terms for disclosing information.
According to part 2 of Art. 15.19 of the Code of Administrative Offenses of the Russian Federation, non-disclosure or violation by issuers of the procedure and terms for disclosing information provided for by federal laws and other regulatory legal acts adopted in accordance with them, as well as disclosure of information not in full, inaccurate, as well as misleading information, entails an administrative fine:
- for officials - from 30,000 to 50,000 rubles. (or disqualification for a period of one to two years);
- for legal entities - from 700,000 to 1,000,000 rubles.