There are also schemes of the debt restructuring involving the change of the ownership rights within the framework of the individual procedures. In November of 1998 the joint-stock company KAMAZ (with the aggregate debt of about 1 bln doll) suggested the following scheme: the tax arrears were to be exchanged for bonds with the subsequent conversion into the shares of the company. The following advantages were mentioned in this respect: the balance sheet would be cleared of debt and the threat of bankruptcy would be removed (because the creditors would be transformed into shareholders). Although the majority of creditors (governments of Russia and Tatarstan, investment company KKR, banks) had to agree with the transformation of debt into shares there is still the special position of EBRD. The latter extended to KAMAZ the loan secured by the property of the company (100 mln dollars in 1995) and would prefer splitting up the plant with the subsequent sale of individual pieces within the framework of bankruptcy. One of the most well-off among the car-making plants in RUSSIA, AO GAZ, also has to engage in the discussions concerning deferment of repayment of the investment loans. In February of 1999 its debts to the foreign banks amounted to about 82 mln dollars.
The decisions of the Government in connection with the restructuring of the GKO-OFZ related debts may become an important additional factor of the ownership structure change in some Russian corporations. The total nominal value of GKO-OFZ held by non-residents is 83 bln roubles. The adopted scheme of restructuring envisaged the possibility to hand over to investors the special securities which may be used as a contribution to the authorized capital of Russian banks (20% of the debt). 10% of the debt are to be paid in money and during one year are to be blocked at the special transit accounts. Apparently, this solution has not been very attractive.
Because of this in 1998 there was a discussion of the possible acquisition by the non-resident-holders of GKOs of the Russian blue chip stocks with two different options: purchase of the corporations’ shares with the part of the rouble amounts received during the settlement for GKO or the right to exchange part of GKOs for the stocks. Only in the very end of 1998 some of the conditions of such investments were clarified: only the open marked transactions were allowed (without participation of the state shareholdings), the maximum amount of investment shouldn’t exceed 3.3% of the total debt (2 bln roubles), the money is to be paid in 3 installments during 6 months.
Among the remaining problems are the choice of the allowed trading floors (probably, the Moscow Interbank Currency Exchange and the Russian Trading System), fears of the destabilization of the currency and OFZ markets, etc. The possibility of issuing the bonds of Gazprom and LUKoil arrears being considered so that they would be exchangeable for the debt paper held by non-residents. Besides giving an impetus to their own stock markets these issuers might be motivated by more prosaic reasons for demonstrating their loyalty to the government: on March 1 expirece the term of the trust management of 35% of RAO’s stocks by the head of Gazprom while LUKoil is interested in some specific versions of the ownership redistribution in the oil industry. At the same time the potential funds of non-residents may themselves become a lucrative target of competition among the professional players of the securities markets and any interested parties.
4.4. Violations of the shareholders rights within the framework of corporate procedures
We have already reviewed above the most typical violations of the shareholders rights. Here it’s necessary to mention the tendencies which became the most typical for the crisis conditions of 1998-1999.
According to the existing data the Russian issuers continue floating new securities notwithstanding the crisis, however, this is being done not in order to attract the capital but for the new redistribution of property. The growth of the number of new issues in 1998 resulted exactly from the stepping up of the process of the ownership rights redistribution when the mechanism of the new issues was used to the detriment of the “alien”, small and medium shareholders.
It’s very significant that in the autumn of 1998 the overall volumes of the re-registration of share transactions by the registrars didn’t decrease but the share of the professional market players went down considerably while the share of the out-of-exchange transactions sharply grew. This, probably, means that there was a considerable growth of the number of transactions involving large shareholdings within the framework of the post-crisis redistribution of ownership.
Although in 1998 there was a sharp increase of the number of new issues of corporate securities (19.941 issues out of which 19.848 -shares, 93 – bonds, 2.617 – refusals to register the issue), we should not attach too much importance to these figures (FCSM, 1999). Most of these issues were the so-called “technical” stock issues and didn’t pursue the objective to attract additional investments. There function mostly was to increase the nominal value of shares or distribute the additional shares among the shareholders due to the increase of the value of company’s assets (revaluation of fixed assets as a result of which no investments are attracted and the shares are distributed free of charge and pro rata among all the shareholders); or sometimes it was done for the purpose of consolidating or fragmenting the shares.
Thus, out of 73 stock issues registered by the head office of FCSM, 51 issues (69.9%) were in connection with the conversion (increase of the par value) and distribution among the shareholders, only 3 were floated under the open and 5 – under closed subscription.
The problem is that the documents which are necessary in order to register the issues of stocks and bonds are quite often balancing “on the brink between abiding by the law and completely ignoring it”.3
365 Because of the existing drawbacks in the Russian corporate and privatization law often this, in essence unlawful, ploy is implemented in legal forms.
In 1998-1999 the violations of the shareholders rights in connection with the reorganization of joint-stock companies became widespread. First of all, it’s the attempts to push individual shareholders into the new companies with unfavorable financial situation. In order to prevent such violations the new version of the Standards for the issue of stocks and bonds and their prospectuses during the reorganization of commercial organization adopted by FCSM in 1998 includes the requirement that all shareholders are to receive the stocks (shares) in all commercial organizations established during the reorganization of joint-stock companies pro rata the number of shares they own in the companies being reorganized.
There is a whole range of other problems typical for 1997-1999 which are directly linked to the violations of the rights of shareholders (investors):
- conflicts of interest during the exercise of the professional activity at the securities market (when the priority of the client’s interest is ignored because of the pursue of own interests, unlawful use of the client’s money);
- activity of the regional authorities (attempts to cancel the new issues of securities);
- failure to comply with the transparency requirements by the issuers and professional market players which also affects the rights of the shareholders (investors);
- infringements on the part of registrars (lack of the necessary information about the issuers and full information in the transmission orders, failure to make the necessary entries in the register on time, overcharging for their services). There were also situations (typical in cases of corporate conflicts in the companies) when the registers were maintained by two registrars;3
- infringements on the part of depositaries (transactions on the depot accounts of clients without the necessary orders, possibility of unsanctioned access to and loss of data bases etc.).
4.5. Reanimation of the state holdings
The history of establishment of holding companies in Russia actually became the history of the perpetually-generated conflicts and violations of the shareholders’ rights. Such a situation can be explained by the sequence of establishment and privatization of many largest holdings entities, primarily, vertically-integrated.
Thus, in the oil industry the process of institutional transformations began with the establishment of individual production corporations and their privatization in 1992-1993. Later on the state shareholdings were brought together in the respective holdings and the new privatization of these newly established entities took place in 1995-1997. The buyers of the “second wave” who obtained the majority control in these holdings inevitably entered into a conflict with the minority shareholders – buyers of the “first wave”. According to some estimates this delayed the emergence of the “efficient owners” in the oil industry by 3 years as a minimum. Apparently, there was some exception in case of LUKoil which made transition to a single share as early as 1995. This conflict of “two privatizations” became one of the symbols of the corporate wars in Russia in 1997-1999 and provided the permanent source of the destabilization of the ownership rights.
A similar story happened with the holding “Sviazinvest”. Initially regional telecommunications companies were established and privatized (as well as Rostelekom), then the controlling stakes (38%) were transferred to “Sviazinvest”. As a result now the improvement of the situation with corporate governance in the holding Sviazinvest” is of crucial importance in order to overcome the disintegrating trends and avoid the possible sale of shares in 1999. To strengthen the control over the transfer of assets of the subsidiary companies to the third parties it’s envisaged, in particular, to include the representatives of the largest shareholders (first of all consortium Mustcom Ltd.) into the Boards of Directors of the subsidiary regional telecommunications companies. It’s also possible that the most profitable activities would be consolidated within individual subsidiaries. The holding’ shareholders already discussed in 1998-1999 the possible option for the merger between the holding “Sviazinvest” itself and its subsidiary company “Rostelecom” (50.67% of shares belong to the holding).3
387 Still under the conditions of the chronic financial crisis and low market capitalization the attraction of sizable funds from a strategic investor (consortium) may pose a problem even with the highly efficient reorganization of holding.
Similar problems also exist in the power generation holding RAO UES of Russia. Here among the key problems (besides the non-residents quotas in the authorized capital) it’s necessary to point out the control over regional companies and relationship between the holding and the local authorities. Many subsidiaries of this holding during 1990s provided examples of the shareholders’ rights discrimination. In this connection it’s necessary to mention the proposal of RO UES made to 45 (out of more than 80) subsidiaries to bring individual provisions of their charters into conformity with the law “On joint-stock companies” (October 1998).
In particular, there is one unlawful and discriminatory against the shareholders provision in accordance with which an increase of the stake of one shareholders by more than 1% of the voting stock needs to be preliminarily approved by the Board of Directors.
By 1998 in Russia there were more than 100 officially established holdings with the government participation. Apart from the above-mentioned corporate conflicts two major trends became typical for 1997-1998 as regards the development of the government holdings: liquidation of certain entities established during the period when the ownership structure was amorphous immediately after the privatization and simultaneous emergence of the new holding-type powerful corporations under the government control.
One of the typical examples of this was the establishment in 1995 of the OAO “Rossiyskaya metallurgiya”. The authorized capital of this holding was formed by 10-% shareholdings in 9 Russian metallurgical enterprises and some other property. There is an opinion, that the real objective of this holding’s establishment was to preserve these shareholdings in order to avoid their purchase by the” alien” shareholders.
At the same time the liquidation of the holding (by the Presidential Decree of November 24, 1997)gives one more example of the inefficient privatization strategy (an attempt to sell 49% of the holding’s shares) under the conditions of the already relatively congealed structure of ownership (control) at the majority of metallurgical enterprises. It’s obvious that the shareholdings of a number of these companies would be joined to the already relatively large stakes accumulated by some of the Russian financial and industrial groups. One more example of the holding being liquidated is the joint-stock company Posugol (“Russian coal”) which was in essence a substitute of the former ministry.
There is also an opposite trend, primarily in such branches as telecommunications, high-tech industries and/or military-industrial complex. Among the examples there is the already mentioned establishment and strengthening of “SVIAZINVEST” in 1995-1997 (with the mixed objective of retaining the control over the branch and providing the revenues for the budget through privatization; 38% of the shares of companies which joined the holding were transferred to it); decision to set up the holding “Rossiyskaya electronica” (“Russian electronics”) (July 1997, 10% of the shares of the newly established companies are to be transferred to it, while the others would be retained by the state), the project of establishing the Russian aircraft instrument-building corporation (the holder of the controlling or blocking stakes in 10-12 enterprises of the relevant production profile), the holding on the basis of the construction enterprises of the Ministry of Defense (1988), etc.