On January 24, 2013 in the Supreme Arbitration Court of the Russian Federation there was a meeting of the Presidium of the Supreme Arbitration Court of the Russian Federation where there was considered a draft resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On amendments into the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19 “On some application matters of the Federal Law “On Joint-Stock Companies” (in the part of share repurchase and application of Chapter XI.1)”.
Judges, members of the Supreme Arbitration Court of the Russian Federation, representatives of the Ministry of Economic Development of the Russian Federation and the Federal Financial Markets Service, representatives of business community and other invitees took part in the meeting. Anton Alexandrovich Ivanov, Chairman of the Supreme Arbitration Court of the Russian Federation, was the moderator of the discussion.
The hottest debates were on the following aspects: concretization of amendments in the articles of association, which limit the shareholders’ rights; granting the right to require share repurchase to the shareholders who did not exercise their preemptive subscription right; establishment of the date by which the number of shares applicable to the repurchase is determined; extension of prohibition on purchase of securities on the terms, which differ from the mandatory offer, also on affiliated persons of a person who sent the mandatory offer; charging the purchaser’s affiliated persons with a duty of share repurchase in case of mandatory offer deflection to the extent of more than 30% of OJSC shares.
According to the results it was resolved to improve the draft and to put it again before the Presidium of the Supreme Arbitration Court of the Russian Federation.
On Yulia Nenasheva’s opinion, extension of prohibition on purchase of securities on the terms, which differ from the mandatory offer, also on affiliated persons of a person who sent the mandatory offer will make this provision impossible. “The criteria of considering a person to be an affiliated one, established by the competition legislative, are such that affiliated persons are also the persons who, actually, do not influence each other. – Yulia remarked. – Moreover, such persons cannot know about sending the mandatory offer by their affiliated person and they do not have to know it, as a purchaser of shares is not responsible for notifying his affiliated persons of sending them the mandatory offer. The result is that the transactions, which can be effectuated by such affiliated persons will be disputable, which, in my opinion, is wrong in the current situation considering low awareness of affiliated persons”.
The draft resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On Joint-Stock Companies” (in the part of share repurchase and application of Chapter XI.1)” is available here.