home » Cash transactions » Methods of protection against hostile takeovers: foreign experience and Russian practice. Company takeover protection

Methods of protection against hostile takeovers: foreign experience and Russian practice. Company takeover protection

Lecture number 8. Defence from hostile takeover.

Lecture plan.

Features of the Russian practice of applying protective measures against hostile takeovers.

Classic ways to counter hostile takeovers.

The set of measures to counteract hostile takeovers is divided into two parts: preventive and active Events. Task preventive measures– reduce the very likelihood of a hostile takeover. Active events intended for immediate defensive action after the start of a hostile takeover.

The following types of preventive (precautionary) measures are known:

"Poisonous (poisoned) pills,

Amendments to the articles of incorporation,

"Poison Pills". These are various options valuable papers issued by the company in order to reduce its attractiveness to a potential buyer. The most commonly used two options for protective "pills": external and internal .External "pills" give the right to the shareholders of the company under threat of takeover to purchase the shares of the aggressor company at a significant discount. internal pills provide a similar right in relation to the company's own shares - the subject of a potential takeover.

The release of "poison pills" is associated with the possibility of the onset of the so-called. "launch" event. Such an event can be:

acquisition of 20 or more percent of the company's shares by any legal or natural person;

tender offer for the purchase of 30 percent or more of the shares.

In most cases, "poison pills" are issued by decision of the board of directors and can be withdrawn for a symbolic price at any time before the "triggering" event. This policy of issuing "poison pills" provides the board with room for maneuver in the event of, for example, a friendly acquisition offer.

Poison pills, as a method of protection against hostile takeovers, were invented by the famous American lawyer specializing in takeovers, Martin Lipton. They were first successfully used in 1982 in the USA in a fight between ELPaso Electric and General American Oil. In the 1990s, protection with "poison pills" became commonplace for most American corporations.

The development and continuous improvement of methods of protection against hostile takeovers has led to the emergence of various forms of "poison pills":

Issues of preferred shares;

Issues of rights;

Issues of bonds with a put option.

Issue of preferred shares . This is the first generation of "poison pills".

The target company enjoying such protection distributes to its shareholders dividends in the form of convertible preferred shares. In addition to fixed dividends on such shares, shareholders receive certain additional rights in the event of a “starting” event. In particular, the conditions for issuing said shares may provide for all their owners the right to demand from the joint-stock company the redemption of their shares for cash. cash at the maximum price paid by the aggressor-buyer for the shares of the target company during the last year. In addition, if the aggressor succeeds in carrying out the takeover, then the preferred shares of the target company can be converted into ordinary shares of the aggressor at a market value determined similarly to the previous case.

Issue rights. The "poison pills" in the form of a preferred stock issue had certain drawbacks, so over time they were replaced by a new generation of "poison pills" in the form of a rights issue. Rights are a type of call option issued by a joint-stock company that gives shareholders the right to purchase shares at fixed price within a certain period of time (usually at least 10 years). The rights to purchase shares are distributed to shareholders as dividends.

In accordance with the terms of the issue, the right to purchase shares becomes effective only if a “triggering” event occurs. It is at the moment of occurrence of such an event that certificates of rights are sent to shareholders. As in the case of preferred shares, the issuer stipulates in the terms of the issue of rights the possibility of their withdrawal during the entire period of circulation for a symbolic price until the “starting” event occurs.

Issuing bonds with a put option . This is the third generation of "poison pills". The issuance of such bonds provides for the right of their owner to demand redemption of the bonds at face value in the event of a hostile takeover. The issuer, resorting to the use of this "poison pill", expects that in the event of a takeover, the presentation of bonds for redemption may create serious problems for the absorber associated with a lack of financial resources.

Amendments to the statutory documents. Changes in the charter of a joint-stock company are the most common and least costly way of preventive protection against takeovers. Various changes to the founding documents of a company that fears a hostile takeover typically include:

Multi-stage conditions for elections to the Board of Directors,

Regulation on a qualified majority for making decisions on mergers and acquisitions,

Double capitalization, etc.

"Split" board of directors. The "divided" board clause is intended to create obstacles in the path of the aggressor in the process of changing the board of directors. Its essence lies in the division of the board of directors into several groups, while no more than one group of directors can be re-elected at the annual meeting. The most typical variant is the division of the board of directors into three groups with the annual election of one third of the directors. Thus, it may take more than two years for the aggressor to gain full control over the acquired business.

"supermajority" clause. This clause stipulates that more than a simple majority of votes is required to approve a takeover transaction, i.e. "supermajority" (qualified majority). A typical example of a supermajority is 75-80% of the votes, in some situations its size can reach 90-95%. The "supermajority" clause may contain an overriding condition whereby the "supermajority" clause does not apply if the takeover is approved by the board of directors of the target company.

double capitalization. Double capitalization provides for the presence in circulation of two or more types of ordinary shares of the company with a different number of votes per share. The main purpose of double capitalization is to give more votes to shareholders who are loyal to the target company.

The most typical example of double capitalization is an additional issue of shares that have a large number of votes compared to previously placed shares of the company. In 1988, the US Securities and Exchange Commission banned such share issues leading to a reduction in the number of votes of existing shareholders. However, this prohibition normative act does not have retroactive effect, i.e. does not apply to US companies that double capitalized before 1988.

"Gold and Silver Parachutes". Special agreements with top executives, managers, or staff of the company to pay them one-time compensation in the event of their voluntary or involuntary dismissal at the time of the acquisition or for some time after it. Agreements on "gold" and "silver" parachutes can be concluded for a certain period, but in most cases they contain the so-called. an "evergreen" clause, according to which the initially fixed period of one year is automatically extended for a year if there is no hostile takeover.

Active defense against hostile takeovers includes a wide range of activities:

Greenmail and dormancy agreements,

"White knight",

"White Squire"

recapitalization,

Litigation,

Pac-Man Defense.

Greenmail called buyback of shares from the buyer with a premium. The payment of the greenmail is usually accompanied by a dormant agreement, under which the buyer undertakes not to buy additional shares in excess of a certain amount specified in the agreement. For this consent, the buyer receives a fee.

"White knight" - a friendly company that agrees to be the best buyer.

"White Squire" - a kind of "white knight". Unlike the latter, the “white squire” carries out a friendly takeover not for himself, but to protect the partner company.

Recapitalization - change in the capital structure by a sharp increase in the share loan capital for the purpose of deliberately worsening the financial condition of a company that has undergone a hostile takeover. This is, in essence, the transformation of the company into its own "white knight".

Litigation - all kinds of legal legal actions aimed at complicating the takeover process. The most accessible and widespread form of protection against hostile takeovers.

Baek-Man Defense - a mirror response tender offer to the buyer to acquire its shares. The most radical measure of defense against hostile takeovers (defense through attack).

2. Features of the Russian practice of applying protective measures against hostile takeovers.

The measures applied in the Russian practice of counteracting hostile takeovers also include preventive and active protective measures. However, their list differs significantly from the classical methods of protection used in foreign countries.

In Russia, specific methods of protection based on a direct violation of the law or on the use of its shortcomings have become widespread. Due to the imperfection of Russian legislation, many civilized methods of combating hostile takeovers are not applied at all or are applied in a very peculiar way.

"Poison pills" in Russian conditions . The release of "poison pills" is not provided for in Russian legislation, however, and is not prohibited. In foreign practice, as already noted, the issue and placement of special rights in the form of "poison pills" is carried out by decision of the board of directors of the joint-stock company. A similar procedure is defined by the Russian law "On Joint Stock Companies".

Thus, nothing prevents in Russian conditions from issuing rights to purchase shares, however, certain provisions of the Law "On Joint Stock Companies" seriously limit the possibility of using the issue of rights as a "poison pill". For example, Article 36 of this law establishes that the payment for shares is carried out at market value, but not below their nominal value. Due to the above legislative restrictions, “poison pills” are used in Russian practice in a very peculiar way.

Under "poison pills" in Russia, it is customary to understand the various actions of the management of the target company, aimed at creating all sorts of obstacles to the aggressor company. The most common varieties of Russian "poison pills" are:

Bonded deals concluded shortly before the seizure of the enterprise;

Issuance of bills for astronomical sums;

Lease of real estate for long-term lease;

Concealment or destruction of all documents of the target company;

The division of the target company into two enterprises.

"supermajority" clause . Russian companies do not have the opportunity to resort to this method of protection, since the "supermajority" clause is actually defined in our country by law and does not require additional changes to the company's charter. According to Russian legislation, 75% of the votes are required to make decisions on all the most important issues in the life of joint-stock companies, including mergers and acquisitions. Based on this, there is only one way for the target company in Russia to block any hostile takeover attempts - controlling more than 25% of the votes of the shareholders of its company.

Double capitalization is also banned in Russia, although this ban applies only to ordinary shares. The Russian law "On Joint Stock Companies" provides that each ordinary share of a company provides the shareholder with the same amount of rights. In other words, Russian joint-stock companies cannot issue ordinary shares with different amounts of rights granted to shareholders.

As for preferred shares, they can be used for double capitalization in Russia. To do this, it is enough to make appropriate changes to the charter of the joint-stock company, which give preference shares of a certain issue the right to vote.

"Gold and Silver Parachutes". This is the only protective measure of a preventive nature that can be used in Russia without restrictions. Russian legislation allows for the inclusion in the labor contract with the top manager of the target company of a special clause, by virtue of which, in the event of early termination of his powers, he receives significant monetary compensation. However, the Russian practice of protection against hostile takeovers so far very rarely uses the possibilities of "golden and silver parachutes".

Active defenses against hostile takeovers in Russia . The situation with the use of classical active means of protection against hostile takeovers in Russia is largely similar to the picture described above with preventive measures. For example, the use of greenmail in Russia is practically impossible and can easily be challenged as violating the rights and interests of other shareholders not participating in the share buyback.

The fact is that in Russia each shareholder - the owner of shares of certain categories, the decision to acquire which has been made, has the right to sell his shares, and the company is obliged to purchase them. In this regard, it is impossible in practice to carry out a division between the ordinary shares of greenmailer and other shareholders. Therefore, when deciding to buy back shares at a premium, it is likely that all shareholders will offer their shares for buyback. In such a situation, the target company would be required to make a proportional share buyback and, accordingly, the planned buyback targets would not be achieved.

Recapitalization . In Russian conditions, the use of recapitalization of the target company is difficult, primarily due to the underdevelopment of the corporate bond market. Currently, only very large Russian companies have real access to the corporate bond market. The majority of Russian companies experience no less difficulties in attracting bank loans, since recapitalization requires the attraction of a significant amount of borrowed funds.

"White Knight" or "White Squire" Invitation . Both types of such protection, in principle, can be easily used in Russian practice. However, it is difficult to find a “white knight” in Russia, since there are still practically no investment banks in our country that usually select suitable candidates. In addition, the “white knight” most often conditions his participation in the fate of the target company with certain concessions, which in Russian conditions can quickly become the subject of litigation, as violating the legitimate rights and interests of shareholders.

In the case of attracting a "white squire", difficulties may arise related to the registration of an additional issue of shares: Russian legislation does not provide for the possibility of reserve registration, as, for example, in the United States.

Pac-Man Defense . In its pure form, such protection in Russia is impossible due to the lack of legislation on the tender offer. In the Russian version, the protection of Peck-Man is a set of all measures to actively combat the aggressor company:

Appeals to law enforcement agencies with statements and complaints about the illegal actions of the aggressor company in buying up shares;

Appeal to the courts with claims against the aggressor company;

Bringing public attention to what is happening

Purchase of shares of enterprises owned by the aggressor company;

Disruption of individual events of the aggressor company.

Litigation . This is the only active protective measure from the classic set of foreign companies that is applied in Russia in a similar way. Moreover, the lack of elaboration, and often the complete absence of regulations relating to various aspects of mergers and acquisitions, creates extensive opportunities for the use of litigation as one of the main methods of combating hostile takeovers in Russian practice. Antimonopoly legislation is especially convenient for effective judicial opposition to hostile takeovers in Russia.

Specifically Russian Ways to Protect Against a Hostile Takeover . Given that the use of most of the classic foreign methods of combating hostile takeovers in Russia is not possible or ineffective, Russian companies have developed their own methods that are typical only for domestic practice. Specifically Russian ways of protecting business from hostile takeovers are usually classified into two groups:

Strategic ways of protection;

Tactical defenses.

TO strategic Ways to protect against hostile takeovers in Russia include:

Formation of a secure corporate structure.

Ensuring effective economic security of the enterprise.

Creation of conditions preventing the purchase of shares.

Creation of a system of control over accounts payable.

Formation of a secure corporate structure . The essence of this strategic method of protection lies in the formation of such corporate structure business, which would almost completely exclude the possibility of its hostile takeover. This method is based on the principle of dividing the company's property complex into parts, which is usually achieved using two schemes:

Reorganization of a potential target company in the form of a spin-off of several small companies that are not interesting from the point of view of a hostile takeover.

Conclusion of the most attractive assets from the point of view of the aggressor companies to subsidiaries related to each other by cross-ownership of shares.

Ensuring effective economic security of the enterprise . To be always ready to repel an attack on a business, its owners must constantly monitor the current situation. To do this, you need to organize your own professional service. economic security, which will track everything that happens around the target company.

Creation of conditions preventing mass buying of shares . The most common scheme to prevent aggressive mass buying of shares is the construction of cross-shareholding. The essence of cross-ownership of shares is as follows. The potential target company creates a subsidiary structure with a majority stake in authorized capital(51 percent or more). The other founders of this subsidiary are minority shareholders who contribute their shares in the parent company as a contribution to authorized capital. Thus, a controlling stake in the parent company is consolidated from the subsidiary, which guarantees full control over the parent company.

Creation of a control system for accounts payable . Effective control over accounts payable can be carried out in various areas:

Avoiding arrears.

Refusal of contractual relations with unknown companies.

Establishment of a special company that accumulates accounts payable.

Implementation of all finished products through a controlled trading house.

To the number tactical Measures to combat hostile takeovers in Russia include:

Counterpurchase of shares.

Asset restructuring.

Blocking of a block of shares acquired by the aggressor.

Working with shareholders.

Defense through attack.

Counterpurchase of shares . This method of tactical struggle against hostile takeovers is the simplest, but also the most costly. The main purpose of counterbuying shares is to prevent the aggressor company from acquiring a controlling stake in the target company.

Restructuring of the assets of the target company . Blocking a block of shares acquired by the aggressor company The target company, using completely legal legal mechanisms, blocks the block of shares acquired by the aggressor company. To do this, you need to find any formal clue in the actions of the aggressor company to buy shares associated with a violation of the current legislation. Along with the blocking of the aggressor, an additional issue of shares is simultaneously carried out in order to reduce the share of the aggressor in the authorized capital of the target company.

Work with shareholders . This measure is not legal. It is associated with the identification and suppression of unfriendly actions of certain groups of shareholders helping the aggressor company, explanatory work with shareholders in order to maintain their loyalty to the target company.

Defense through attack . It is a counter attack on the aggressor company, including:

Buying shares of the aggressor company or shares of enterprises owned by it.

Handling applications and complaints to the courts and law enforcement agencies on the illegal actions of the aggressor company.

Organization of relevant publications in the press.

Disruption of the activities of the aggressor company aimed at capturing the target company.

Mergers and acquisitions as one of the forms of reorganization legal entity- this is a normal process throughout the world and clearly regulated by law, but, unfortunately, in Russia this process has acquired a pronounced criminal and predatory connotation.

The action, in fact, is the same as "the key to the apartment where the money is." It often turns out that the corporate “apartment” is rich, and its doors are flimsy, and the key itself, if you want, you can get your hands on without much difficulty: the owners are gullible people and do not think that they can be robbed. Thus begins the hunt for someone else's property, the ultimate goal of which is to establish control over someone else's business. In domestic business practice, such actions are called "capture of the enterprise" or "hostile takeover". Hostile takeover- this is the taking of one company by another under its control, its management with the acquisition of absolute or partial ownership of it, and this taking is carried out either without the consent of the management of the absorbed company, or even in secret from the managers.

The question of the effectiveness and expediency of using hostile takeovers as a way of reorganizing corporate capital is, in general, quite debatable. On the one hand, hostile takeovers are a serious tool for optimizing corporate governance and an incentive for the most efficient use of resources. But on the other hand, such actions are often used for speculative purposes and are destructive for the economy of enterprises and, of course, for the country as a whole.

Within the framework of this work, an attempt was made to consider various methods of protection against forceful seizures of enterprises, hostile takeovers. The development of effective measures to minimize the risk of financial and property losses from the actions of unfriendly companies is largely based on the creation of practical obstacles in the way of the aggressor. As you know, guessing and fortune-telling about whether something will happen or not, in the matter of protecting a money-bearing asset, can lead to complete business losses. There are many examples of this, it is no coincidence that there are special divisions in FIGs that develop options for a hostile takeover of competing companies.

At any level (international, regional, city) there are people who are ready to pick up everything that lies badly. For this purpose, specialized companies are often created, receiving an order to take over a particular enterprise or asset. Moreover, as a rule, such companies work for a percentage of the absorbed asset, i.e. their financial interest in the positive outcome of the takeover is evident.

Of course, it is necessary to defend against such aggressors. However, agreeing with such a need, many owners of enterprises consider it sufficient to bring their block of shares to 75% or appoint "their" general director. And then they stop paying attention to protecting their assets. And only with obvious signs of an unfriendly takeover or merger, they remember the need to build a comprehensive defense. But to what extent will it become complex and, consequently, effective? Acquisition practice and common sense show that individual measures are less effective than timely developed comprehensive strategic and tactical defense.

1. The main methods of hostile takeover

One of the basics of the tactics of military operations is the principle "Know the weapon of the enemy, be able to resist it and use it in your own interests." Modern business in the face of fierce competition is the same war, only waged by other means. Therefore, in order to effectively build a system of protection against an unfriendly attack, it is first necessary to determine those possible ways takeovers that can be applied to the enterprise.

In the West, there are hostile takeover tactics such as bear hugs and tender offers to buy shares.

Bear hug. Sending messages to the top management of the target companies about the upcoming takeover, demanding that they take a quick decision on this proposal. In case of refusal, the acquiring company goes directly to the shareholders of this company behind the back of its management with a tender offer.

Tender offer. The management of the target company may advise shareholders to accept the offer or resist the intentions of the potential buyer. The tender offer can be implemented in various ways.

Two-tier offer - the price at which the acquiring company promises to buy the shares of the acquiring company is differentiated. First, a block of shares of a higher level (for example, 51%) is bought at a higher price, which is announced simultaneously with the tender offers. The rest of the shares are then bought at a lower price.

Partial offer – the acquiring company announces maximum amount shares it intends to acquire, but does not disclose its plans for the rest of the shares.

Both of these bidding methods aim to reduce the total acquisition price of the target company's shares and at the same time encourage the shareholders of the target company to sell their shares faster by promising a higher price when buying a starter shareholding.

The most common hostile takeover methods in modern Russia steel: consolidation (purchase) of small blocks of shares; deliberate bringing to bankruptcy; targeted reduction in the value of the enterprise and the acquisition of its assets; contesting property rights to strategically important assets (industrial and technological complex, subsoil use rights, etc.); "purchase" of enterprise managers.

As can be seen from the above list, these methods are quite diverse. In this study, the task is not to tell about all of them, and even more so to oppose adequate protection options to each method. The paper attempts to give an overview of the systematic approach to enterprise protection.

2. Preliminary protective measures

Strategic methods of protection - the methods provided for by the enterprise strategy (i.e., a long-term business development plan), their application causes serious organizational changes in the business management system. These methods are used in the systematic organization of business protection, as a rule, when the attack has not yet begun and there is no real visible threat of takeover.

Strategic methods of protection include, mainly, organizational and managerial measures: building a corporate structure, forming a system of economic business security, organizing an effective system of motivation for top managers, etc.

1. Actions to change the nature of management.

The legal basis for the protection of the company should be scrupulously developed internal documents (the Articles of Association, the Regulations on the governing bodies, the Agreement with the Management Company, etc.), corresponding to the chosen protection strategy. Often, these documents are treated as an unpleasant formality, repeating the imperative norms of corporate law in them. Business owners often do not take into account that in the event of a threat of a hostile takeover, they may simply not have enough time to eliminate contradictions in documents and make the additions necessary for the organization of protection. The internal documents of the company must clearly define the procedure for making strategic decisions about the fate of the business, the procedure for exiting the business, the procedure for determining the price of the assigned share in the business.

a) Since the board of directors is a key governing body in most companies, the support of board members is important for the aggressor. According to the law, members of the board of directors are elected at the annual meeting of shareholders, which means that a major shareholder may well make his candidacies. Therefore, it is proposed to divide the board of directors into three groups. Thus, each year only one group can be re-elected, as a result of which the acquiring company cannot immediately take control of the target company, i.e. the capture process is delayed. However, in Russia this method is poorly applicable, because. according to Art. 66 of the Federal Law of the Russian Federation "On Joint-Stock Companies", the election of the board of directors must take place once a year for a period of one year, in addition, any member of the board of directors can be re-elected ahead of time by decision of the meeting of shareholders.

b) With an unfriendly takeover, most often attempts to change the management bodies are carried out even before gaining control over even half of the shares of the company. The current joint stock legislation provides for alternatives regarding the body competent to elect the general director or the chairman of the board of directors. If the right to elect them is attributed to the competence of the general meeting, then it will not be enough for the aggressor to obtain operational control to enlist the support of half of the members of the board of directors, it is required to convene a general meeting of shareholders. And if we additionally provide for the election of the board of directors by cumulative voting, then the period for holding an extraordinary general meeting can be postponed from 40 days to 70. In terms of protection, an additional month may not be superfluous at all.

Example:

During the takeover of one company, the aggressor managed to negotiate with several members of its board of directors, offering them guarantees for the extension of their powers under the new owner. However, the aggressor could not remove the general director and seize the operational management of the company, since in its charter the election of the general director and members of the board of directors was referred to the competence of the general meeting. Of course, at the request of members of the board of directors, an extraordinary general meeting of shareholders was convened. But the charter provided for the election of the board of directors by cumulative voting, and the period for holding an extraordinary general meeting was automatically moved from 40 days to 70. In the issue of protection, an additional month played a decisive role. During this time, the company has taken a number of actions, including an exemplary purchase of its shares at an inflated price, which actually blocked the subsequent increase in the aggressor's shareholding, work was carried out with shareholders. After an extraordinary general meeting was held, which did not re-elect unfriendly members of the board of directors and confirmed the powers of the acting general director, the company's stake was bought out from the aggressor at an acceptable price.

c) The Articles of Association may stipulate in advance a simplified procedure for convening the board of directors. In the event of an attack on an object, this allows you to gain time and increase flexibility in control.

d) The articles of association may include special requirements for the election of members of the board of directors, for example, on work experience or education. Thus, when appointing a general director in a number of regions of energy companies, the main requirement was a ten-year experience in the energy sector.

e) One of the most common methods of hostile takeover is the purchase of accounts payable. And in this regard, the eternal question of the main shareholder of the company will be - does the management act in the interests of the company and does it make decisions on concluding transactions with due diligence?

Current legislation allows shareholders to legitimately restrict the ability of individual officials, in particular the CEO, to avoid accidentally or deliberately creating an unfavorable situation in society.

First of all, this is a direct indication in the Charter of additional restrictions on transactions by their size (the option of restrictions by types of transactions, by counterparties is not excluded). The sole executive body under the current legislation independently concludes transactions up to 25% of the book value of the company's assets. In order to establish greater control over its activities, it can be limited to 5-10%, etc. This is especially expedient with a significant balance sheet value of assets or in the presence of several technologically interconnected, but legally separate industries.

f) The competence of the general director in the implementation of transactions can be limited through a change in the structure of management bodies. In companies where the presence of a board of directors is not mandatory, it is possible to introduce this body and transfer part of its powers to it. In the middle and large companies the powers of the executive body are redistributed between the general director and the board. The creation of a board of directors and a board of directors also makes it possible to use such a tactical method of protection as the bureaucratization of the decision-making procedure in society.

g) Provide for a supermajority condition, which implies the consent of the absolute majority of shareholders to carry out particularly important decisions. A typical example of a super-majority would be a requirement to receive 75% of the votes on amendments to the charter, reorganizations and major transactions. This requirement stipulated in Art. 48 and 49 of the Federal Law of the Russian Federation "On Joint Stock Companies". In other cases, the consent of up to 95% of the voters is required for the adoption of individual decisions. The reverse side of this technology is a decrease in flexibility in the approval of complex management decisions.

h) Monitoring the current state. When buying up the most interesting assets, many aggressors act according to the principle: “Why buy an enterprise if you can buy its management?” Indeed, if an enterprise has not built an effective system of independent monitoring of its financial and economic activities (in other words, a system of business economic security), it will not be so difficult for an aggressor to implement this principle.

The monitoring system is traditionally implemented through the creation of the current monitoring service itself (economic security service) and the control and audit service, whose tasks include conducting comprehensive audits of compliance with the management procedures established at the enterprise.

i) The procedural issues of making decisions that are strategically important for society should be clearly regulated in the regulations on the governing bodies and such an extremely important for any commercial organization document as the Regulations on the procedure for concluding contracts. Correct alignment management process the conclusion of an agreement and its clear legal regulation allows in most cases to avoid the threat of actions by the management and employees of the company in the interests of the aggressor (accept the terms of the transaction that are enslaving for society, provide an easy opportunity for the aggressor to buy up the obligations of the company, etc.).

j) Selecting a registrar is a separate security issue. Societies do not always transfer their register to a professional registrar, when this is not directly required by law. But when they come to the enterprise with a custom “check” government bodies(whether it is the prosecutor’s office or the Ministry of Internal Affairs with their new powers, it doesn’t matter) and, based on the extended list of documents that they have the right to request, require the submission of a register of shareholders, one has to come up with formal grounds for refusal. When the register of a joint-stock company is transferred for maintenance to a well-verified specialized registrar, one can fully expect that during the verification he will refer to an exhaustive list of grounds for disclosing such information.

We should also not forget that the use of a specialized registrar for the main owner of a joint-stock company is an additional way to regulate transactions with the most liquid asset society - its shares and a way to reasonably narrow the uncontrolled powers of top management.

When choosing a registrar, a cautious owner will definitely check whether it is a well-known company on the securities market with a good reputation; whether the registrar will provide an opportunity to obtain operational information on the movement of the company's shares; whether it is independent of potentially hostile structures.

k) In this regard, it is appropriate to talk about the adoption of a charter that protects against takeover. The charter protecting against takeover is a collective term, denoting a whole range of measures that exclude the possibility of using common mistakes by the aggressor and provide additional opportunities for procedural protection (for example, the procedure for conducting transactions with shares of the company, the procedure for selecting and terminating the powers of persons acting on behalf of the company, the procedure for amending the articles of association).

2. Stock protection.

Stock protection consists in carrying out transactions with securities aimed at limiting the turnover of shares and counteracting the accumulation of significant blocks of shares by the initiators of the takeover.

Securities transactions may include both the diversification of rights in different groups of securities owned by shareholders, and the possibility of changing the rights to securities in case of adverse events.

a) Double capitalization method implies the presence of two or more groups of shares with a different number of votes per share. Shareholders in control artificially inflate the number of votes by issuing more shares with more votes per share. In order to avoid litigation on violation of the rights of shareholders during the additional issue, new shares are distributed among all shareholders up to a certain period, as well as the possibility of exchanging new shares for old ones. As a rule, newly issued shares have lower dividend payout rates and quotes, so they can be easily exchanged by shareholders.

An effective stock protection is a predetermined purchase price of shares in the case of purchases of large blocks. Of course, the price is set at a higher level than the market rate. So did the Pecheney Co.

b) Another form of stock protection is transfer of shares in trust management to related companies. Owning companies (and there are two types - owners of blocks of shares and intangible assets and owners of capital-intensive and most liquid property) do not themselves conduct any financial and economic activities, which allows minimizing the risk of their capture through the concentration of accounts payable or by imposing responsibility for activities of the production business units of the holding. They only determine the key appointments in the management company and exercise control over the use of the holding's main assets.

The direct management of the holding's activities is carried out by a specially created Management Company, which exercises its power in relation to production business units and service companies through an agreement between the management company and the subsidiary. This agreement defines the delimitation of powers and responsibilities between the management company and the subsidiary, defines the mechanism for coordinating and making decisions on key aspects of activity. Depending on the distribution of powers that have taken place, the degree of centralization / decentralization of management in the holding is determined. Thus, the concentration of assets and their transfer to a safe place is carried out. Cross co-ownership can also create additional barriers to the invader's path.

c) A sufficiently effective measure is restriction of circulation of shares or division of markets for their circulation. This measure is not very popular in the West, since the restriction of the circulation of shares has a negative effect on share prices. In our country, Gazprom resorts to a similar technique, limiting the volume of traded securities on one trading platform. Technically, this is done by setting quotas for the size of the block of shares acquired within a certain period of time.

d) In addition to time and quantitative restrictions on the circulation of securities, as part of the construction of preliminary protection, the company may conduct change in legal form. Open joint-stock companies can be transformed into closed or even limited liability companies. In the case of circulation of the company's shares on the stock market, they are redeemed at market value, and then the organizational structure is changed. legal form. Surgutneftegaz recently resorted to a similar practice in Russia. It should be noted, however, that in this case the company loses a significant part of its market value, therefore, if the company's resources are limited, its production and financial performance may suffer.

3. Other organizational and specific activities.

a) Poison pill method not new to Russian practice for a long time. The preparation of "poison pills" implies the implementation of measures that reduce the company's attractiveness to potential aggressors or make the takeover procedures as difficult as possible.

"Poison pills" can be organized in the following forms:

Issue of rights to securities;

Issue of preferred shares;

Issue of debt securities with a put option.

In the first case, protective measures are understood as the issuance of rights to securities that are distributed within the management team and, in the event of a takeover, will allow the defenders to make an additional issue and subsequent distribution of shares among loyal shareholders.

In the second case, a decision is made to pay dividends to shareholders in the form of preferred shares. It is stipulated in advance that in case of initiation of a hostile takeover or change of ownership as a result of such a takeover, the company undertakes to buy back these shares at a fixed price (above the market price).

In the case of issuing debt securities, the company undertakes to buy back these securities at a predetermined value in the event of a successful takeover. Typically, this is a severe blow to the solvency of the acquiring company, even as it resorts to heavy borrowing to carry out a hostile takeover. The advantage of "poison pills" as a way to protect against takeovers also lies in the possibility of changing or canceling these measures with the full consent of the company's management. Naturally, this is possible when the aggression is stopped or the hostile takeover is changed to a friendly one.

b) The basis of any team management system is the correct motivation of managers and leading specialists. It is they who make up the core of the company and largely determine the success of this business. Therefore, one of the effective mechanisms for protecting business is the creation of a motivation system that orients the company's management towards the growth of the value and efficiency of the business. In the Western business community, partnership schemes for top managers and key specialists in business. We are talking about signing contracts with the company's management. This includes how creation of "golden parachutes", and the conclusion of direct labor doctors, providing care in the event of a hostile takeover. Under the "golden parachutes" we mean significant compensation to the company's management in the event of a takeover and change of the management team. In the absence of hostile action, this measure can be automatically extended for a year or more before the takeover is initiated. The amount of compensation is unique in each specific case, but, as a rule, it amounts to several annual salaries of an employee (in modern Russia, these mechanisms are almost never used, which, in our opinion, indicates an insufficient development of a corporate governance culture rather than a fundamental impossibility of using these schemes on domestic soil).

However, often a hostile takeover is aimed at maintaining the efficiency of the business at the current level. This is not possible without saving frames. Therefore, as part of the preliminary protection, the target company stipulates the possibility of leaving key employees in the event of a hostile takeover.

v) Building strategic partnerships and alliances(strategic stakes) is also one of the protection measures. Formally, participation in an alliance can be strengthened by the exchange of shares of participants, but the presence of a strong partner who is ready to help in initiating a hostile takeover plays a big role.

d) Of the rather simple, but, nevertheless, reliable methods of preliminary protection, one can note competent organization register maintenance. Most often, depositories become the sources of information about the exact ownership structure of the target. Therefore, the company must be aware of the risks in case of cost savings on the registrar.

3. Protection after absorption initiation

Let's say that despite all the precautionary measures taken, the company was attacked by an outside company. This means that the time comes for protective measures after the initiation of the takeover (tactical methods of protection). We note right away that, compared with preliminary protection, these measures are much more capital-intensive.

1. Very common in world practice litigation with absorption initiators. It is expressed in lawsuits challenging the election of new members of the board of directors; arrests of blocks of shares bought up by the invader; litigation of significant decisions, such as an additional issue or reorganization of assets. It is possible to involve the initiator of the takeover (as well as the target company) in legal proceedings at any stage of the takeover. This tactic allows you to buy time when preparing other defensive moves.

2. In the early stages of absorption is possible redemption of their shares the company under attack. This is in line with the asset concentration guidelines outlined in the Preliminary Safeguard Actions. Another thing is that, unlike preliminary measures, the purchase will be carried out not only directly on the stock market, but also from agents involved in asset speculation. Accordingly, redemption costs can be quite significant. An alternative to own buyout can be a tender counteroffer, when an offer is made to the aggressor to buy out a controlling stake at a price that is significantly higher than the market price.

As the number of shares in free float decreases, the management of the object of attack may begin to dilute the blocks of shares owned by the invader, for example, by conducting an additional issue or issuing dividends to management and loyal shareholders in the form of blocks of new shares. Also, a decision on the double capitalization of issued shares can be carried out through the board of directors.

3. One of the most radical methods of protection is attack on the aggressor or the so-called "Pacman defense". This method can slow down or stop hostile takeovers due to the reallocation of the initiator's resources to its own defense. Also, the shares of the takeover initiator can be exchanged for their own. The adoption of this measure of protection must be well prepared, since it is very expensive and not always effective due to the lack of accurate information about the ownership structure of the aggressor.

4. An important part of the defense organization is its funding. Often, the company simply does not have its own funds for protection. In this case, it is necessary to involve third party funding. In Western practice, this technique is called "attracting the" white knight ". An ally can be a financial group associated with the object by economic and business relations, or a third party bank. “The involvement of the “white knight” can be carried out with or without the transfer of control over the object. If the former owner retains control, the ally company has the right to count on certain benefits and advantages.

5. Another protective measure available at any stage of the takeover is asset restructuring in order to increase their security. Naturally, it is better to take these actions long before the start of a hostile takeover, since it is highly likely that, carried out in the course of active actions, they will be challenged by opponents.

The last way to protect in case of continuation of the acquisition procedure is the deterioration of financial performance or asset structure. This method is a series of actions - from the withdrawal of the most significant assets to individual companies to a full range of measures for deliberate bankruptcy (the so-called "scorched earth" tactics).

The withdrawal of assets can be carried out both for the purpose of selling them to the initiator to terminate the takeover procedure, and for the purpose of improving their protection against takeover. In the case of a more radical form of protection, the next step after the restructuring is the withdrawal of funds in the form of dividends, investments, etc. Another form of deterioration in the financial picture is the attraction of external financing with the subsequent withdrawal of the funds received. Thus, as a result of absorption, the aggressor receives an empty and unattractive shell. On the other hand, such measures in the vast majority of cases do not make a positive contribution to the development of the company and can be challenged in court by the opposing party.

It is worth highlighting several very effective methods of protection against hostile takeovers, which stand apart from the above classification.

"Greenmail"

Repurchase of shares of the target company at a premium to the market price from shareholders. Often, the buyback is made from the acquiring company itself.

"reincorporation"

Re-registration of a company in another region

No action agreement

A voluntary agreement with the shareholder from whom the shares are being redeemed that he will not acquire the shares of the target company for a certain period of time.

Redemption with leverage / Management buyout

Already discussed above, this mechanism is an effective method of protection against hostile takeovers. A company bought out by management is of much less interest to the acquiring company, since it is no longer possible to reach an agreement with shareholders - all shares are concentrated in the hands of top management. In addition, after the management buyout is completed, the target company becomes burdened with excess debt, which makes it less attractive.

Thus, it can be concluded that successful defense is a combination of economic and legal measures. The above methods are far from a complete list of modern mechanisms of absorption and protection against it. It should also be noted that the comparative costs and effectiveness of protective measures were deliberately not given, since it is extremely difficult to determine which of them will be effective without knowing all the conditions of each particular case. It can be summarized that the protection of the company in any situation is a unique project and requires the maximum concentration of enterprise resources.

The approach proposed in this paper to the organization of complex protection against hostile takeovers makes it possible to combine the most common methods of protection into a system. However, when adjusting the business strategy, it is also necessary to take into account the issues of its effective protection.

To service takeovers, as mentioned above, infrastructures are being created, consisting of several firms specializing in developing schemes for the forcible takeover of companies and, presumably, in bribing judges and officials. All this damages the state, makes Russia unattractive for many strategic investors, discredits judicial system countries and ongoing market reforms. Therefore, it is necessary and necessary to fight hostile takeovers. And when forming a protection system, one should use the old, like the world, rule "The one who is warned is armed."

4. Ensuring the interests of shareholders in the redistribution of corporate control

So, we have established that one of the ways to establish shareholder control is a takeover, i.e. acquisition of a controlling stake. The objectives of the legislative regulation of the takeover are to ensure the rights of shareholders when consolidating a block of shares of a certain amount from a person or persons who, as a result of such consolidation, acquire leverage (up to full control) on the decisions of the general meeting of shareholders, which in turn may affect the market value of shares and dividend policy of the company.

It is necessary to legislate the following main mechanisms for ensuring the rights of shareholders and investors with the possibility of change and change of control:

· establishing a procedure for timely and complete informing shareholders and investors about the intentions and actions of the acquirer (potential acquirer);

· Establishing a complicated procedure for making decisions on protective measures in case of takeover in order to provide shareholders with the right to choose a more efficient owner and prevent the withdrawal of capital by management;

· creation of a mechanism for exercising the right of minority shareholders to sell shares at a fair price in the event of a change in material conditions compared to those on the basis of which the shareholder made an investment decision;

· consolidation of mechanisms that ensure the balance of interests of the largest corporate owner (90% or 95% of the authorized capital) and minority shareholders in the implementation of the so-called "crowding out", in which the shares of minority shareholders are redeemed at a fair price.

Monitoring the current state
Managers Motivation

Why is it always necessary to defend against an unfriendly attack, and not when it has already begun

The development of effective measures to minimize the risk of financial and property losses from the actions of unfriendly companies is largely based on the creation of practical obstacles in the way of the aggressor.

As you know, guessing and fortune-telling about whether something will happen or not, in the matter of protecting a money-bearing asset, can lead to a complete loss of business. There are many examples of this, it is no coincidence that there are special divisions in FIGs that develop options for a hostile takeover of competing companies.

Perhaps someone will say that these are "games of the powerful." However, it is not. At any level (international, regional, city) there are people ready to pick up everything that lies badly. For this purpose, specialized companies are often created, receiving an order to take over a particular enterprise or asset. Moreover, as a rule, such companies work for a percentage of the absorbed asset, i.e. their financial interest in the positive outcome of the takeover is obvious.

Of course, it is necessary to defend against such aggressors. However, agreeing with this need, many owners of enterprises consider it sufficient to bring their block of shares to 75% or appoint "their" general director. And then they stop paying attention to protecting their assets. And only with obvious signs of an unfriendly takeover or merger, they remember the need to build a comprehensive defense. But to what extent will it become complex and, consequently, effective? Acquisition practice and common sense show that individual measures are less effective than timely developed comprehensive strategic and tactical defense.

The main methods of hostile takeover

One of the basics of the tactics of military operations is the principle "Know the weapon of the enemy, be able to resist it and use it in your own interests."

Modern business in the face of fierce competition is the same war, only waged by other means. Therefore, in order to effectively build a system of protection against hostile attacks, first of all, it is necessary to determine those possible acquisition methods that can be applied to the enterprise.

The most common methods of hostile takeover in modern Russia are:

Consolidation (purchase) of small blocks of shares
Deliberate bankruptcy
Purposeful reduction in the value of the enterprise and the acquisition of its assets
Challenging ownership of strategically important assets (industrial and technological complex, subsoil use rights, etc.)
"Purchase" of enterprise managers

As can be seen from the above list, these methods are quite diverse, and any reader who is somewhat experienced in Russian business will surely immediately recall familiar examples of the use of these absorption methods. Therefore, we do not set ourselves the task of telling about all of them, and even more so, to oppose adequate protection options to each method. We will try to give an overview of the systematic approach to enterprise protection. Systems approach involves the systematic use of a combination of many methods of defense - placing on the enemy's path the optimal (in terms of the ratio of defense effectiveness / defense costs) number of "slingshots", their use depending on the intentions and actions of potential and real aggressors.

Strategic and tactical defenses

Strategic methods of protection - methods provided for by the company's strategy (i.e., a long-term business development plan), their use causes serious organizational changes in the business management system (for example, the transition to a holding structure). These methods are used in the systematic organization of business protection, as a rule, when the attack has not yet begun and there is no real visible threat of takeover.

Nevertheless, the majority of active and dynamically developing Russian business structures, when forming their development strategy, must take into account the factor of business protection.

The strategic methods of protection include, mainly, measures of an organizational and managerial nature - building a corporate structure (the structure of organizations that are part of a holding company, a group of companies), forming a system of business economic security, organizing an effective system of motivation for top managers, etc.

Tactical methods of defense are used when the attack has already begun, or when the threat of attack is already obvious. They do not require major strategic and organizational innovations. As a rule, these are legal actions.

Basic strategic defenses

As already noted, the use of strategic methods of protection requires serious organizational and managerial innovations. What are these changes in the traditional structure of medium-sized businesses? This:

Business integration (vertical or horizontal)
Defense through attack
Diversification (distribution) of property and financial risks in a holding structure

The use of the first two strategic methods of protection is typical for enterprises - industry leaders. This and the spread of its power up and down the production chain. Buying up and directly capturing smaller competitors, building a production and sales network in the regions is also one of the effective methods of protection at the level of strategy.

Let's leave alone the market leaders and their aggressive methods of protection and tell you more about another common way to protect large and medium-sized businesses - diversification of property and, to some extent, financial risks. This method is based on the use of a simple worldly principle: "do not put all your eggs in one basket." In relation to the production, technological and financial complex of an enterprise, this means - do not concentrate all assets in one organization, if you attack it, you can lose everything at once.

Let's take an example of how the most "advanced" business structures operate in this direction. The holding scheme depicted in the figure is a kind of collective image of many really operating business structures. Let's see how they are organized.

Real business owners, as a rule, do not advertise their predominant participation in the authorized capital of production business units directly. They operate through specially created companies - owners. Often these companies are registered in offshore zones, since the legal status and procedure for registering an offshore company in some jurisdictions allows not disclosing information about the composition of shareholders (members) of this organization. There are also exotic examples of registration in Russia under nominees of a company-owner with the same goal - to keep information about the real owners of the business secret.

Owning companies (and they are of two types - owners of blocks of shares and intangible assets, and owners of capital-intensive and most liquid property) do not themselves conduct any financial and economic activities, which allows minimizing the risk of their capture through the concentration of accounts payable or by imposing liability for the activities of the production business units of the holding. They only determine the key appointments in the management company and exercise control over the use of the holding's main assets.

The direct management of the holding's activities is carried out by a specially created management company, which exercises its authority in relation to production business units and service companies through an agreement between the management company and the subsidiary. This agreement defines the delimitation of powers and responsibilities between the management company and the subsidiary, defines the mechanism for coordinating and making decisions on key aspects of activity. Depending on the distribution of powers that have taken place, the degree of centralization / decentralization of management in the holding is determined.

At one time (in the middle of the 1990s), during the period of the most active corporate construction, a scheme of over-concentration of powers in the holding's management company was widespread in the Russian raw material industries. This scheme was implemented by transferring the powers of the executive bodies of the subsidiary to the management company (Article 103 Civil Code, Art. 69 of the Federal Law "On Joint Stock Companies"). Thus, all legally significant actions on behalf of the subsidiary were carried out directly by the management company. On the one hand, this made it possible to concentrate power over business in one hand, on the other hand, it made it difficult operational management geographically remote business units. As the system of corporate management of raw material holdings was being built, the oil and metallurgical "wars" were subsiding, most of the integrated structures switched to a less centralized management model, although there are still cases of applying the scheme of super-centralization of powers.

In addition to the actual production business units, the holding structure includes service companies serving commercial and auxiliary functions. In some industries that are characterized by significant dynamics of personnel movement (for example, in construction), it has recently become customary to create specialized staffing companies who, from the point of view of the risk distribution scheme, bear the burden of responsibility for relations with the labor collective, trade unions and regulatory authorities (state labor inspectorate, immigration services, etc.). In recent years, a popular trend in the oil and gas industry has been the creation of service companies for production drilling and workover of wells, which, again from the point of view of the protection scheme, allows the distribution of ownership of the most capital-intensive assets.

The use of service companies serving commercial functions (as a rule, sales and supply) allows you to separately control the material and financial flows of an enterprise, organize a protective buffer in the way of an aggressor who attacks through the concentration of accounts payable.

Let's consider two examples of using a risk sharing scheme in the interests of an average Russian enterprise operating, for example, in the food industry. With protection method 1, the production business unit "Plant" is protected from external counterparties by two buffers - Trading house "Snab" and Trading house "Sbyt", which provides the necessary protection, and also allows you to flexibly vary the flow of financial resources between holding organizations. With protection method 2, a production business unit with the conditional name "Operating activities" directly interacts with external counterparties, i.e. is at risk of capture through the concentration of accounts payable, but its most "tasty" assets are isolated in companies - owners that do not conduct current activities.

Tactical defenses. a brief description of

When applying tactical methods of protection, serious strategic and organizational innovations are required. However, for their effective application, the ground must be prepared in advance in the form of a system of internal documents of the enterprise that regulate the emergence of rights and the assumption of obligations. When forming such a package of documents, special attention should be paid to the following areas:

regulation of the formation and activities of governing bodies
regulation of transactions with shares
current state monitoring system

Let us dwell in more detail on the most significant aspects of tactical methods of protection against hostile takeovers.

Regulation of the Formation and Activities of Governing Bodies as a Way of Reasonably Restricting the Powers of Governing Bodies

Successful protection against hostile takeovers and mergers is based on confidence in the clear and well-coordinated work of society as a whole, its governing bodies and managers as the main driving force that overcomes any encroachment. Internal lack of control, vagueness in the delimitation of powers or excessive inertia in decision-making can in themselves lead to negative consequences, and if they are present during the attack of the aggressor, the ship will sink without even having time to fight.

The legal basis for the protection of the company should be scrupulously developed internal documents (the Articles of Association, the Regulations on the governing bodies, the Agreement with the Management Company, etc.), corresponding to the chosen protection strategy. Often, these documents are treated as an unpleasant formality, repeating the imperative norms of corporate law in them. Business owners often do not take into account that in the event of a threat of a hostile takeover, they may simply not have enough time to eliminate contradictions in documents and make the additions necessary for the organization of protection. Modern Russian business recently "crossed" the ten-year milestone of its development, and history already knows a lot of cases when former friends and partners, having decided to divide the business, enter into such a clinch that they create the most favorable ground for an attack by an aggressor. And mainly why? Because they did not bother in advance to clearly define the procedure for making strategic decisions about the fate of the business, the procedure for exiting the business, the procedure for determining the price of the ceded share in the business.

First of all, you should pay attention to the following key points when developing a package of internal documents of the company. In an unfriendly takeover, the aggressor seeks to gain operational control over the enterprise. For this purpose, a change of governing bodies is being carried out. Most often, attempts to change are carried out even before gaining control over even half of the company's shares. The current joint stock legislation provides for alternatives regarding the body competent to elect the general director or the chairman of the board of directors. If the right to elect them is attributed to the competence of the general meeting, then it will not be enough for the aggressor to obtain operational control to enlist the support of half of the members of the board of directors, it is required to convene a general meeting of shareholders. And if we additionally provide for the election of the board of directors by cumulative voting, then the period for holding an extraordinary general meeting can be postponed from 40 days to 70. In terms of protection, an additional month may not be superfluous at all.

Of course, at the request of members of the board of directors, an extraordinary general meeting of shareholders was convened. But the charter provided for the election of the board of directors by cumulative voting, and the period for holding an extraordinary general meeting was automatically moved from 40 days to 70. In the issue of protection, an additional month played a decisive role. During this time, the company has taken a number of actions, including an exemplary purchase of its shares at an inflated price, which actually blocked the subsequent increase in the aggressor's shareholding, work was carried out with shareholders. After an extraordinary general meeting was held, which did not re-elect unfriendly members of the board of directors and confirmed the powers of the acting general director, the company's stake was bought out from the aggressor at an acceptable price.

In this regard, it is reasonable to talk about the adoption of a charter that protects against takeovers. The statute protecting against takeover is a collective term, denoting a whole range of measures that exclude the possibility of the aggressor using common mistakes and provide additional opportunities for procedural protection.

Ways to reasonably limit the competence of the General Director and managers of the company

One of the most common types of hostile takeovers is the purchase of accounts payable. And in this regard, the eternal question of the main shareholder of the company will be - does the management act in the interests of the company and does it make decisions on concluding transactions with due diligence?

The current legislation allows shareholders to legitimately restrict the ability of certain officials, in particular the general director, to avoid accidentally or deliberately creating an unfavorable situation in society.

The competence of the general director in the implementation of transactions can be limited through a change in the structure of management bodies. In companies where the presence of a board of directors is not mandatory, it is possible to introduce this body and transfer part of its powers to it. In medium and large companies, the powers of the executive body are redistributed between the CEO and the board. The creation of a board of directors and a board of directors also makes it possible to use such a tactical method of protection as the bureaucratization of the decision-making procedure in society. As already mentioned, it is possible to transfer the powers of the general director of the management company.

Procedural issues of making decisions that are strategically important for society should be clearly regulated in the regulations on governing bodies and in such an extremely important document for any commercial organization as the Regulations on the procedure for concluding contracts. The correct alignment of the management process of concluding an agreement and its clear legal regulation allows in most cases to avoid the threat of actions by the management and employees of the company in the interests of the aggressor (accept the terms of the transaction that are enslaving for society, provide an easy opportunity for the aggressor to buy up the obligations of the company, etc.).

Creating additional protection through a reasonable distribution of powers between the company's management bodies, limiting the uncontrolled powers of management, does not allow an unfriendly company to force the company's managers to make a deal or make a decision that does not correspond to the interests of the company. In fairness, it should be said that such restrictions will not be able to fully protect society from the actions of an unfriendly CEO. But even in such an extreme situation, he will not deprive the enterprise of the most significant asset in one hour and will not concentrate significant accounts payable with an unfriendly company.

Stock transactions as a high-risk area

The most popular way to gain control over a joint-stock company is to buy its shares. When building protection against takeover through the consolidation of blocks of shares, special attention should be paid to the minimum necessary requirements for this connection to the charter and to the registrar of the company.

In the practice of corporate warriors, where the resolution of a conflict goes beyond negotiations and all available means of attack and defense are used, there are very often cases of challenging the decisions of the governing bodies on the basis of non-compliance with the decision-making procedure. Since the options for contesting on such grounds are diverse, it is necessary to impose additional requirements on the charter of the company, in particular, regulate:

the procedure for notifying shareholders and the Company about the offer of shares for sale (for CJSC);
the procedure for the acquisition by the Company of unredeemed shares;
the procedure for making a decision to increase the authorized capital (declared shares);
the procedure for converting equity securities into shares.

But, having developed and adopted the most protective charter, there is no need to make elementary mistakes. The real owner of the business legally registered the company for another individual. While the business was not large, there were no questions. With the advent of good profits, the official shareholder began to demand more and more sums under the threat of selling the business, to the creation of which he had only an indirect relationship. To the credit of the real owner, he decided to get out of this situation with the help of lawyers. A scheme was developed to create debt from the official shareholder for his personal obligations, and the shareholder transferred the entire block of shares to pay off debts.

A separate issue of protection is the choice of a registrar. Societies do not always transfer their register to a professional registrar, when this is not directly required by law. But when state bodies (be it the prosecutor's office or the Ministry of Internal Affairs with their new powers, it doesn't matter) come to an enterprise with a custom-made "check" and, based on an extended list of documents that they have the right to request, demand that a register of shareholders be submitted, one has to come up with formal grounds for refusal. When the register of a joint-stock company is transferred for maintenance to a well-verified specialized registrar, one can fully expect that during the verification he will refer to an exhaustive list of grounds for disclosing such information.

We should also not forget that the use of a specialized registrar for the main owner of a joint-stock company is an additional way to regulate transactions with the company's most liquid asset - its shares and a way to reasonably narrow the uncontrolled powers of top management.

When choosing a registrar, a cautious owner will definitely check:

whether it is a well-known company with a good reputation in the securities market;
whether the registrar will provide an opportunity to obtain operational information on the movement of the company's shares;
whether it is independent of potentially hostile structures.

Monitoring the current state

When buying up the most interesting assets, many aggressors act according to the principle: "Why buy an enterprise if you can buy its management?" Indeed, if an enterprise has not built an effective system of independent monitoring of its financial and economic activities (in other words, a system of business economic security), it will not be so difficult for an aggressor to implement this principle.

Managers Motivation

When creating a defense system, one should not get too carried away by the principle "Drag and don't let go", widely known in Russia. The system of total bureaucratization of management procedures and strict control over their observance cannot by itself provide effective business protection. Excessive complication of procedures can reduce the manageability of the business by reducing the efficiency of decision-making, and will irritate top managers and key specialists.

The basis of any team management system is the correct motivation of managers and leading specialists. It is they who make up the core of the company and largely determine the success of this business. Therefore, one of the effective mechanisms for protecting business is the creation of a motivation system that orients the company's management towards the growth of the value and efficiency of the business. In the Western business community, partnership schemes for top managers and key business specialists (options, deferred income mechanisms, "parachutes") are widespread. In modern Russia, these mechanisms are almost never used, which, in our opinion, indicates rather an insufficient development of a corporate governance culture than a fundamental impossibility of using these schemes on domestic soil.

Ways of active counteraction

Any method of active counteraction must be built on the basis of the aggressor's strategy of action. Therefore, all actions of society aimed at repelling aggression can be conditionally divided into:

Emergency share buyback from minority shareholders;
Additional placement of shares by closed subscription;
Emergency restructuring, asset withdrawal;
Target redemption of their shares from the aggressor;
Buying shares or other assets of the aggressor for the purpose of subsequent exchange;
"White Knight" - leaving under the protection of a stronger player than the aggressor;
"Reincorporation" - re-registration of a company in another region;
Litigation (or disputes for any reason).

We plan to cover in detail these and other practical methods of active countermeasures used in domestic conditions in the next publications. We hope that the approach to the organization of complex protection against hostile takeovers proposed in this article has helped you put all the most common methods of protection into a system. With the next adjustment of the business strategy, you will not forget to take into account the issues of its effective protection. When forming a protection system, we suggest you use the old, like the world rule "He who is forewarned is armed."

L.L. Nikitin,
Director of Consulting Department, ACF "Modern Business Technologies"
D.V. Nurzhinsky,
Head of Legal Expertise Department, ACF "Modern Business Technologies"

Themes of reports and abstracts.

1. Internal control and risk management as criteria for effective corporate governance.

2. The system of internal control and risk management in the company.

3. Determination of the competence of management bodies in the implementation of the internal control system at the enterprise.

Main literature:

1. Shadrin M.B. Strategic management. 2nd edition. St. Petersburg: Peter, 2009 - 320p.

2. Shapkin A.S. Economic and financial risks. M.: graduate School, 2007 - 244p.

3. Bob Garratt . How to prevent a company development crisis. Implementation of new corporate governance standards. M.: Eksmo Publishing House 2008. - 304 p.

4. Utkin E.A. . Enterprise risk management - M.: Teps, 2007 - 255s.

5. Board of Directors as a global standard for corporate governance of a company / Ed. I.V. Belikov. – M.: Eksmo, 2008. – 624 p.

Additional literature:

1. Bulletin "Corporate Governance and innovative development Economics of the North” of the Research Center for Corporate Law, Management and Venture Investment of SyktSU (www.syktsu.ru).

2. Sarbanes-Oxley Act (USA). (www.koet.syktsu.ru).

4. Ownership, corporate governance and investment / A.P. Shikhverdiev, G.P. Poltavskaya, V.K. Boikov. Syktyvkar, Syktyvkar branch of the Educational Institution of Higher Education of the Central Council of the Russian Federation "MUPC", 2005. - 306 p.

5. Tom Cowland, Tim Kohler, Jack Pudrin. Company value: valuation and management. Per. from English. M.: CJSC "Olymp Business", 2008 - 576s.

6. Cherezov A.V. Rubinstein T.B.. Corporations, corporate governance. M.: CJSC Publishing House "Economics", 2006. - 478 p.

7. Shikhverdiev A.P., Basmanov ON THE. Withdrawal of assets. Economic law. 2002. No. 7.

8. Shikhverdiev A.P., Blinov A.O.,. Kuznetsov A.V. Corporate law in the system of corporate governance. M.: Ed. Shareholder Center. 2006. - 343p.

9. Vesnin V.G. Management: textbook .. M .: Prospekt, 2009 - 512s.

10. International principles of corporate governance (www.koet.syktsu.ru).

11. Broilo E.V. theory and practice of accounting for crises and risks in management modern organizations. Monograph. - Syktyvkar. Komi book publishing house, 2006

Acquisitions are the main tool for the dynamic redistribution of control over companies. Acquisitions make it possible to remove inefficient managers (against the will of the latter) and benefit from the synergistic effect of merging various firms. In addition, the very threat of takeover influences the behavior of persons with control rights, namely, it disciplines them. In this regard, a well-functioning market for acquisitions is recognized as an important component (if not a prerequisite) of an effective corporate governance system.

As a result of acquisitions, the control over the company, its strategy and decision-making process change, there is a change of directors and managers. The economic benefit of the takeover lies, in particular, in the fact that it can become a prerequisite for improving the use of the company's assets. This, in turn, will benefit all shareholders. At the same time, takeovers are a potential source of violations of the rights of minority shareholders.

The change of control may be carried out on a voluntary basis, by way of merger or merger, as agreed between the shareholders and managers of the companies involved in such merger or merger. However, takeovers can also be hostile, when some of the directors' shareholders and managers of the acquired company try to prevent its takeover. The negative consequences of the acquisition of control are limited not only to possible abuses in the period leading up to such an acquisition (for example, a two-stage voluntary offer to acquire shares in which different groups of shareholders are offered different prices), but also include possible subsequent problems that may be faced by minority shareholders ( for example, a change in dividend policy or an increase in remuneration of managers to the detriment of the interests of minority shareholders).

In the event of a voluntary change of control, shareholders may express their attitude towards the results of such a change and explicitly give their consent to any consequences of such a change. In the case of a hostile takeover, directors and managers are usually more able to prevent, acting in their own interest, such changes in control that would increase the value of the company's shares. At the same time, if the hostile takeover attempt is successful, minority shareholders who have not given their consent to acquire control may find themselves in a situation where the new controlling shareholder will abuse his position and try to "punish" them for such behavior.

Over the past few decades, the issue of regulation of takeovers has gained particular relevance. The EU has now approved the Thirteenth Company Law Directive dealing with takeover bids. Unlike Russian legislation, the directive attempts to apply takeover rules to listed companies and to specifically address voluntary takeover bids (which are not governed by Russian law at all). A voluntary offer to acquire shares is a public offer to acquire a company's shares, which results in a change of control. There are specific rules regarding the terms and conditions of such offers and the disclosure of information about them. Legislation on this issue is also being improved in Russia.

Thus, on January 5, 2006, the President signed Federal Law No. 7-FZ “On Amendments to the Federal Law “On Joint Stock Companies” and Certain Other Legislative Acts of the Russian Federation”. In accordance with this Law, the Federal Law "On Joint Stock Companies" introduces new chapter regulating the process of acquiring large blocks of shares. Instead of article 80 "Acquisition of 30 percent or more of the company's ordinary shares," a new chapter appeared, with 10 articles. This innovation applies to all open joint stock companies, their shareholders, as well as investors intending to purchase shares in an open joint stock company.

To protect against hostile takeovers, special methods are used that reduce the likelihood of the capture of an enterprise-object. Depending on the situation, the initiator of protection against seizures may be the management of the organization or its owner (or one of the owners).

It is difficult to say how the protection against seizure will affect the well-being of the shareholders of the enterprise-object. On this account, in the Western theory of corporate governance, there are hypotheses of the welfare of shareholders and the welfare of management.

In the shareholder wealth hypothesis it is argued that the implementation at the enterprise-object of measures to protect against hostile takeovers increases the current welfare of its shareholders. According to this hypothesis, the sources of increasing the wealth of shareholders can be the following:

1. All transactions in which there are contradictions between the parties involved in them regarding the value of the object being sold are associated with long-term price negotiation, and a hostile takeover is no exception. In a hostile takeover, the subject enterprise tries to negotiate the size of the tender directly with the shareholders of the object enterprise, while ignoring its management. The exclusion of managers from agreeing on the size of the tender offer can significantly reduce the welfare of shareholders, since the latter are not able to negotiate the buyback price of shares as effectively as their managers and can sell them at too low a price. Some security methods prevent the subject enterprise from overriding the management of the object enterprise. In addition, protection slows down the process of hostile takeovers, at which time competing enterprises-subjects may become interested in the takeover, and an increase in competition inevitably leads to an increase in the size of the tender offer.

2. The constant threat of a hostile takeover can lead to the fact that the managers of the target enterprise will focus not on the stability and prosperity of the enterprise in the long term, but on its current profitability. Management begins to reduce the volume of investments, to reject investment projects, the payback period of which exceeds 2-3 years. Indeed, if an enterprise can soon be taken over by competitors (and after a hostile takeover, the management of the object enterprise will be replaced), then it is natural that the management of the object enterprise will not be interested in the long term. Such management behavior will lead to a short-term increase in the value of the enterprise and a decrease in its value in the short term, and as a result, to a decrease in the welfare of its shareholders. Hostile takeover protection helps solve this problem.

The Welfare Hypothesis of Managers, on the contrary, he argues that protection against hostile takeovers reduces the welfare of the shareholders of the target enterprise. Management, defending itself from a hostile takeover, pursues its own interests, namely, it tries to artificially weaken the disciplining function of the corporate control market. Thus, management protects itself first of all, and not shareholders at all. Protection reduces the likelihood of a hostile takeover of the enterprise-object, and therefore reduces the risk of loss of wages by management. Defensive actions that do not benefit shareholders may benefit management, which is trying so hard to reduce its risks.

There are a number of controversial issues in the managerial welfare hypothesis. Domestic practice testifies against the assertion that after the preparation of the defense, an increase in the volume of investments should occur. The opposite situation is observed - as soon as investors learn about a corporate conflict and the preparation of a defense, investment volumes are sharply reduced.

Protecting the target enterprise from hostile takeovers is often seen as a problem of agency relationships within the enterprise. To do this, it suffices to assume that the parties to the agency relationship (the manager is the agent of the shareholders, who theoretically should maximize their welfare) will maximize their own welfare. Thus, many management decisions will run counter to the welfare of shareholders. This conflict of interest is called agency costs, but what is cost for shareholders is profit for management.

The main methods of protection against hostile takeovers offered by modern foreign literature are presented below.

Techniques for protecting a company from a takeover before the public announcement of this transaction.

1. Amending the charter of a corporation(“anti-shark” amendments to
charter):

- Rotation of the board of directors: The advice is divided into several parts. Yearly
only one part of the council is elected. More votes needed
to elect a director.

- Supermajority: supermajority approval of a merger
shareholders. Instead of a regular majority, a higher proportion is required
votes, not less than 2/3, and usually 80%.

- Fair price: limits mergers to shareholders owning more than
than a certain percentage of shares outstanding, unless a fair share is paid
price (determined by a formula or an appropriate valuation procedure).

2. Change of place of registration of the corporation. Considering the difference in
the legislation of individual regions, the place for registration is selected, in
where it is easier to carry out anti-seizure amendments to the charter and facilitate
own legal protection.

3. "Poison Pill". These measures are taken by the company to reduce its
attractiveness to a potential "invader". For example, for
existing shareholders are issued rights which, if purchased
a significant share of the shares of the invader can be used to
purchase of a company's common stock at a low price, usually
half the market price. In the event of a merger, the rights can be used to
acquisition of shares in the acquiring company.

4. Issue of shares with higher voting rights. Spreading
new class of ordinary shares with higher voting rights. Allows
managers of the target company to obtain a majority vote without owning
a larger share of the shares.

5. Leveraged buyout. Buying a company or
divisions by a group of private investors involving a high proportion
borrowed money. The shares of the company that is bought out in this way are more
are not traded freely on the stock market. If, when buying out a company, this
group is led by its managers, then such a transaction is called company buyout
managers.

Techniques for protecting a company from a takeover after the public announcement of this transaction.

1. Pacman's defense. Counterattack on the shares of the invader.

2. Litigation. Litigation is initiated against the invader for
violation of antitrust or antitrust laws
securities.

3. Merging with the "white knight". As a final attempt to defend against
takeover, you can use the option of combining with a "friendly
company", commonly referred to as the "white knight".

4. "Green Armor" Some companies make a group of investors,
threatening to take them over, a buyback offer with a premium, i.e.
an offer for the company to buy back its shares at a price exceeding
market, and, as a rule, exceeding the price paid for these
stock this group;

5. Concluding management contracts. Companies conclude with their
management personnel contracts for management, in which
high remuneration for the work of management. This
serves as an effective means of increasing the price of the acquired company,
because the cost of "golden parachutes" in this case will increase significantly.

6. Asset restructuring. Buying assets you don't like
invader or that would create antitrust problems.

7. Restructuring of liabilities. Issuance of shares for a friendly third
parties or an increase in the number of shareholders. Redemption of shares at a premium
existing shareholders

Let's consider the listed protection methods for their compliance with the current Russian legislation.

Establishing a higher percentage of votes (in American terminology - the supermajority condition) for resolving the most important issues is contrary to Art. 49 of the Federal Law of JSC, which clearly establishes the percentage of votes for decision-making at meetings of shareholders.

The right to acquire shares of an additional issue at a significant discount in the event of a hostile takeover (in American terminology - a "poison pill") cannot provide for any significant discounts when shareholders purchase shares of both an enterprise-subject and an enterprise-object (Article 36 of the Federal Law of JSC) In this case, a large part of the "poison pill" effect is also lost, since the shareholders of the target enterprise have no incentives to purchase additional shares issued in the event of a hostile takeover.

The use of compensation to management (in American terminology - "golden parachutes") does not contradict Russian law, but the practice of hostile takeovers shows that "golden parachutes" are the least effective means of combating an enterprise-subject. First of all, this is due to the fact that the amount of compensation paid to the managers of the enterprise-object is incomparable with the scale of money spent on the seizure as a whole. Raiders paying out billions of dollars to acquire businesses can relatively easily afford to lose several million in compensation.

The following methods of active protection of enterprises from hostile takeovers are:

buyback of shares (inaction agreement);

· recapitalization;

· invitation of "white knight", or "white squire";

Restructuring of assets;

· consolidation of own shares;

Protecting Pacman.

A share buyback is a repurchase by the target enterprise of its own shares from the subject enterprise, accompanied in most cases by the payment of a premium. To prevent possible further attempts to buy shares in the future, a no-action agreement is signed, according to which the subject enterprise undertakes not to buy shares of the target company for a certain period of time (usually at least 5 years).

A no-action agreement is one of the least effective defense strategies, primarily because it essentially only provides the target firm with a temporary reprieve. If the target firm fails or fails to take advantage of this delay to take more effective protective measures, it is highly likely that others will follow the first proposal.

An analysis of Russian legislation shows that the use of the buyback method in Russian practice can easily be challenged as violating the rights and interests of other shareholders not participating in the buyout. The provisions of Art. 72 of the Federal Law of JSCs provide that a joint-stock company has the right to acquire shares placed by it by decision of both the meeting of shareholders and the board of directors. Each shareholder - the owner of shares of certain categories, the decision to acquire which has been made, has the right to sell his shares, and the company is obliged to purchase them (clause 4, article 72 of the JSC Federal Law). In practice, it is not possible to separate the ordinary shares of the entity from the shares of other shareholders. When deciding to buy back shares at a premium, it is likely that all shareholders will offer shares for buyback. In such a situation, the target enterprise will be obliged to carry out a proportional buyout of shares (clause 4, article 72 of the JSC Federal Law) and therefore the planned goals of the buyout will not be achieved.

In addition, the board of directors of a joint-stock company is not entitled to make a decision on the acquisition of shares if the nominal value of the company's shares in circulation is less than 90% of the authorized capital. In other words, the maximum size of the stake that can be purchased from the subject enterprise is no more than 10%. The meeting of shareholders may decide to buy out a larger stake, but it is unlikely that the shareholders will agree to pay a significant premium to the subject enterprise while depriving other shareholders of the opportunity to earn the same profit.

Recapitalization is one of the most radical remedies. It usually refers to the payment of significant dividends to the shareholders of the enterprise-object, financed by borrowed funds. At the same time, some shareholders receive a dividend mainly in cash or a combination of cash and debt securities, while management and shareholders loyal to it receive predominantly additional shares. The target enterprise may resort to direct borrowing without paying dividends to shareholders. Nevertheless, in both cases, the result of such operations is a sharp change in the structure of the company's capital with an increase in the share of borrowed sources of financing. In addition, as a result of recapitalization, the share of equity controlled by management and majority shareholders often increases by 30% or more.

The effectiveness of this method of protection is perceived by us ambiguously. Additional debt increases the degree of financial dependence of the business and increases the business risk of the enterprise-object. As a result of recapitalization, or attraction of additional borrowed funds, the share of debt in the capital structure often increases to a critical value of 85-90%. This method is called "scorched earth tactics" in the United States, because as a result of its implementation, the enterprise-object often goes bankrupt1.

In Russian conditions, the use of such a method may be difficult, primarily due to the underdevelopment of the corporate bond market. At the moment, bonds of 10-15 issuers are circulating on the market, representing the largest and most famous companies(RAO Gazprom, OJSC TNK, OJSC LUKOIL, etc.). For the rest, access to this market is actually closed, since investors are not ready to take on the risks of investing in the debts of Russian enterprises, which are mostly non-transparent structures with uncertain development prospects. The same reasons determine the limited availability of bank loans. Thus, the use of a protection method involving the attraction of significant borrowed resources is difficult for most Russian enterprises to achieve, if not impossible.

Defending itself against a hostile takeover, the target enterprise may resort to restructuring, including both the sale and purchase of certain assets. When planning a takeover, the invader evaluates the degree of attractiveness of certain assets of the enterprise-object in different ways. There are often situations in which the aggressor, even before the moment of direct takeover, already clearly knows which assets need to be preserved and which can be sold to refinance the debt raised for this seizure. Based on the area of activity of the acquirer, the direction of his business, the enterprise-object can also pre-evaluate the degree of attractiveness of its various assets for the invader.

Having determined which assets are most attractive to the aggressor, the target enterprise can sell them, which in most cases leads to the termination of the seizure. This method of protection in American practice was called the "crown of thorns."

It is one of the most controversial methods of struggle of domestic enterprises with unfriendly purchasers. In the process of its implementation, the enterprise-object may lose most of the most valuable assets, which cannot but cause active resistance on the part of shareholders. Therefore, the facility managers must make every effort to obtain at least a market price for the assets being sold, otherwise they will inevitably be accused of actions that violate the interests of shareholders.

The reverse of the "crown of thorns" method of protection is the acquisition by the enterprise-object of assets certain types. First, by acquiring assets or an existing business, the target entity may seek to create antitrust compliance problems for the acquirer (with prior approval of the transaction from the antitrust authorities). Secondly, the target enterprise may acquire a business to reduce its own attractiveness in the eyes of the invader. For example, if the enterprise object is - sustainable enterprise with little financial dependency and stable cash flows, then acquiring a less profitable, debt-laden business may cause the entity to rethink its intentions.

Asset restructuring can be widely used in domestic enterprises. In particular, a major transaction involving the sale of property of a joint-stock company with a book value of 25 to 50% of the book value of all assets is subject to approval by the board of directors of the joint-stock company (clause 1, article 79 of the JSC Federal Law). In case of a transaction with property over 50% of the book value of all assets, the decision is made by the general meeting of shareholders (clause 2, article 79 of the JSC Federal Law). Thus, managing companies have the right to independently dispose of half of the assets of a joint-stock company without the prior consent of shareholders. Moreover, as practice shows, the book value of fixed assets of Russian enterprises (buildings, equipment) is often much lower than their real market value. However, it is not uncommon for situations in which receivables account for more than 50% of all assets. Together, this leads to the fact that, if there is a corresponding desire, managers can, without the consent of shareholders, completely sell all the real production assets of the enterprise and leave the business in fact one shell, consisting mainly of overdue receivables, unrealistic to collect.

The law provides for the procedure for big deal, compliance with which, according to the legislator, should protect the interests of shareholders. In particular, paragraph 2 of Art. 77 of the Federal Law of JSC provides that in the event of a major transaction, the value of the acquired or sold property is determined by the board of directors on the basis of market prices. However, the lack of a market price base for the products of many domestic enterprises allows the board of directors to actually independently assess the market value of certain assets. The law does not oblige the board of directors to engage an independent appraisal firm to determine the real market value of the property being sold. Moreover, even the involvement of appraisers does not guarantee the independence of the appraisal, since the same board of directors acts as the customer for the appraisal. All this, of course, can lead and, as practice shows, often leads to the sale of assets at a price significantly lower than the real market value.

In view of the foregoing, it can be concluded that asset restructuring as a method of protection against hostile takeovers can be widely used. domestic enterprises. However, at all stages of its use, a comprehensive control of the shareholders of the enterprise-object over the actions of managers is necessary.

Consolidation of own shares as a measure of protection against hostile takeover has a number of important advantages for the enterprise-object.

First, the repurchase of own shares reduces the total number of outstanding shares of the enterprise-object (acquisition of shares by the enterprise-object itself makes it impossible for the enterprise-subject to acquire them).

Secondly, the buyback of one's shares makes it possible to stop the accumulation of large stakes in the hands of professional stock brokers. These risk arbitrage participants can, as already noted, greatly facilitate the takeover by the invader, since their main goal is to make a profit by reselling the shares to the subsequent buyer who offered the highest price (usually this buyer is the enterprise-subject - the invader).

Thirdly, by purchasing its own shares, the enterprise-object uses its own or borrowed financial resources. In the first case, the invader after the capture is deprived of the opportunity to use these financial resources of the enterprise-object for further refinancing, for example, repayment of loans attracted for the capture. Acquisition by the target enterprise of its shares at the expense of borrowed funds reduces its "credit intensity", which also makes debt financing unavailable for the raider.

The disadvantages of a share buyback as a form of protection against a hostile takeover, in our opinion, are inextricably linked with its advantages. For example, repurchasing one's shares in the market leads to a reduction in the total number of shares outstanding. On the one hand, the invader will no longer be able to acquire these shares, at least until he comes to an agreement with the target enterprise, but on the other hand, the absorber needs to acquire a much smaller number of shares in order to accumulate a controlling stake. To resolve this problem, the target enterprise may resort to so-called spot buybacks. Such a buyback involves the acquisition of shares from a particular shareholder, presumably the most inclined to sell them.

The possibilities of buyback of own shares in the Russian conditions have already been analyzed above, when considering the agreement on inactivity. However, it should be additionally noted that, by decision of the board of directors, shares with a nominal value of not more than 10% of the authorized capital may be acquired (clause 2, article 72 of the JSC Federal Law). A more significant redemption can be carried out only by the decision of the meeting of shareholders to reduce the authorized capital by acquiring a part of the outstanding shares (clause 1, article 72 of the JSC Federal Law). If such a decision is made, the mechanism of the target firm's tender offer for its shares is automatically launched, since in accordance with paragraph 4 of Art. 72 of the Federal Law of a joint-stock company, each shareholder acquires the right to sell his shares, the decision to acquire which has been made.

In Baekman's defense ("counterattack"), the target enterprise, after receiving an unfriendly tender offer, in turn, comes up with a proposal to acquire shares in the capturing enterprise-subject. The use of Pacman by an enterprise-object of protection is rarely brought to its logical conclusion. In most cases, the enterprise-object tries to indicate the possibility of using this protection and to convince the invader of a high chance of success in using it if he does not give up his intentions.

Thus, we can conclude that successful protection is a combination of economic and the above methods are far from a complete list of modern mechanisms for absorption and protection against it. It should also be noted that the comparative costs and effectiveness of protective measures were deliberately not given, since it is extremely difficult to determine which of them will be effective without knowing all the conditions of each particular case. It can be summarized that the protection of the company in any situation is a unique project and requires the maximum concentration of enterprise resources.

To service takeovers, as mentioned above, infrastructures are being created, consisting of several firms specializing in developing schemes for the forcible takeover of companies and, presumably, in bribing judges and officials. All this harms the state, makes Russia unattractive to many strategic investors, discredits the country's judicial system and ongoing market reforms. Therefore, it is necessary and necessary to fight hostile takeovers. And when forming a protection system, one should use the old, like the world, rule "The one who is warned is armed."

Ensuring the interests of shareholders in the redistribution of corporate control

It is necessary to legislate the following main mechanisms for ensuring the rights of shareholders and investors with the possibility of change and change of control:

· establishing a procedure for timely and complete informing shareholders and investors about the intentions and actions of the acquirer (potential acquirer);

Questions for self-examination.

1. What could be the consequences of a company takeover?

2. What is the essence of the shareholder welfare hypothesis and the management welfare hypothesis?

3. What are the methods of protection against a hostile takeover of the company before the public announcement of this transaction?

4. What are the methods of protection against a hostile takeover of the company after the public announcement of this transaction?

5. What legislative measures can help to solve the problem of hostile takeovers?

The purpose of this paragraph is an attempt to most clearly and widely highlight the known and most effective methods of protection against hostile takeovers used both in Russian and international practice. As already noted in the work, in our country, as often happens, international experience is used very creatively, being significantly modified in accordance with the requirements of Russian legislation. Among the well-known methods of resistance to a potential invading company used by Russian companies, one can find almost all methods used in international practice. The only exceptions are those protection methods that cannot be transferred to Russian market due to the specifics of Russian legislation.

Hostile takeover defense is the actions of the management or owners of the target company to prevent attempts to acquire it or to establish a certain degree of control.

In general, all methods of protection against hostile takeovers existing in Russian and international practice can be divided into two groups:

1. preventive methods or pre-offer (pre-bid) defense. Some authors call these methods strategic;

2. methods used after the start of a hostile takeover operation or post-offer (post-bid) defense. These methods, in turn, are called tactical.

Strategic defense methods are methods provided by the strategy of the target company. Their application causes serious changes in the business management system. Such methods are used in the planned, advance organization of business protection, as a rule, when the attack has not yet begun and the real threat of takeover of the target company is not yet visible, which is why strategic protection methods are called preventive.

Tactical defense methods are used when the attack has already begun, or when the threat of attack is already obvious. Such methods do not require serious strategic and organizational innovations, but, as a rule, provide for the prompt solution of problems, including those of a legal nature.

It should be noted that the more thoughtful and broader the set of protective measures taken by the target company, the more likely it is that it will seriously resist the invader company, remain independent or increase the shareholder value of its company.

Before starting a detailed consideration of the well-known strategic and tactical methods of protection against hostile takeovers, I would like to note some recommendatory questions that all business units should take into account in order to additionally insure their business from the undesirable actions of invading companies. Although in the unstable business environment in which Russian companies have to work, such advisory questions should be regarded as necessary, and to some extent even mandatory.

These questions boil down to:

* Knowing the shareholders of your company. It is very important to have the support of the main institutional investors (shareholders), to create and improve ways of interacting with them, and also not to miss the opportunity to expand the shareholder base;

* Availability of main, key consultants. Target companies need to identify experts and consultants who can provide support in the event of a hostile takeover immediately and efficiently;

* Constant monitoring of news in the media, directly or indirectly related to corporate conflicts, including hostile takeovers, as they are often covered by the press. Moreover, it would be highly beneficial for the target company to develop a PR plan together with a firm that specializes in corporate conflicts.

In Western practice, as a preventive measure to protect against hostile takeovers, consultants of the target company often develop a “defense manual” as well as a “pre-bid checklist”.

The defense manual allows the target company to avoid mistakes in the early days of the hostile actions of the capturing company, to avoid the need to search for and involve consultants at a time when the pressure of the capturing company is great.

Defense manual includes:

* Analysis of their own activities, as well as an analysis of how effective the business strategy was. The target company must determine how its performance can be assessed by the invading company;

* Identification and identification of the features of a potential company-invader;

* Identification and identification of features of possible companies - "white knights";

* The study of the features of antimonopoly legislation, as well as other regulatory legislative acts, to one degree or another used in hostile takeovers and protection against it.

After reviewing the general advisory issues that are desirable to take into account and put into action by the target company, we move on to a detailed discussion of the various strategic and tactical methods of protecting against hostile takeovers.

As mentioned above, strategic defense methods are used when an attack has not yet begun or there is not even a threat of an attack itself, so the use of such measures allows the target company to thoughtfully and thoroughly protect itself from a hostile takeover in advance.

Exists whole line strategic methods of protection against hostile takeovers, therefore it is appropriate to classify them:

1. Development of a protective charter

2. Formation of a secure corporate structure, including

Creation of a system of cross-ownership of shares;

Diversification of property and financial risks (exercising control over accounts payable through an organization friendly to the target company, concentrating the most valuable assets in a separate company).

3. Motivation of the management of the company-goals in order to focus on further growth and business development

4. Use of "poison pills" (poison pills)

5. Use of "compensation parachutes" (golden, silver and tin parachutes)

Development of a protective charter

As you know, the charter is the main and extremely important constituent document for any joint-stock company. But, unfortunately, there are still a lot of managers of Russian enterprises who treat this document very dismissively, which leads to inaccuracy and inconsistency of some definitions and provisions, which is the basis for the development of numerous corporate conflicts, including hostile takeovers. .

In connection with the foregoing, amending any provisions of the charter in advance of the start of a hostile takeover or at the start of an aggressive buyout is one of the effective ways to protect against a hostile takeover. In Western practice, defense tactics based on the conduct of amendments to the charter are called "shark repellent" or "Shark repellent" tactics.

As an example of adjusting the charter, it is advisable to give an example described by the authors Semenov A.S. and Sizov Yu.S. in his work "Corporate Conflicts: Causes of Their Origination and Ways to Overcome", namely, the introduction of a rule on the priority right of other shareholders in a CJSC to acquire shares alienated by the current shareholder not only to a third party, but also to other shareholders of the company.

Such an amendment will prevent the possibility of using the classic takeover scheme in a CJSC, when first one share falls into the hands of the capturing company through the donation procedure, and then, as a shareholder, a representative of the capturing company buys shares from other shareholders.

Given the rich experience of foreign countries in the field of protection against hostile takeovers, it is necessary to highlight the method of protection through the splitting of the Board of Directors (classified or staggered board provision), which has become widespread in US practice. The essence of this method is to introduce a clause into the charter of the target company, which stipulates the procedure for dividing the Board of Directors into three classes, according to which the members of the Board of Directors of the 1st class are elected once a year, the 2nd class - once every two years , III class - once every three years. Thus, the ability of the invading company to gain immediate control of the target company immediately after the purchase of a controlling stake is limited, since the invading company will have to wait another two years in order to obtain the required majority on the Board of Directors. More than half of the US corporations included in the Standard & Poors 500 index are equipped with this type of protection. This method of defense increases the cost of a hostile takeover and is arguably the most effective method of resisting the gaining control of an invading company through a proxy contest. One thing can be said about the effectiveness of this method of protection in practice - even if the division of the Board of Directors does not stop the capturing company for three years, it will certainly complicate the takeover procedure for it.

Another way to protect against a hostile takeover by amending the articles of association is to include a clause in the target company's articles of association that specifies a high percentage of the votes required to make a decision on the takeover. This method is called "Supermajority condition". Most companies that use this method of protection set the quantitative threshold for merger decisions at the level of 2/3 to 80%, some raise the bar even to 95%. The supermajority condition automatically applies to all transactions involving parties or major shareholders. Of course, such restrictions significantly limit the possibilities of a hostile takeover, since in order to ensure control, the capturing company needs to buy out not only a controlling stake in the target company, but a stake that would satisfy the conditions of the supermajority, which automatically leads to an increase in the amount of financial resources necessary for successful acquisition. hostile takeover.

The Fair price provisions protection method, which is a tightening of the supermajority method, introduces a clause into the charter of the target company that determines the conditions for the buyout, as a rule, of more than 20% of voting shares. The fair price in this case is understood as the same buyback price for any share of the target company, both large blocks of shares and small blocks. Thus, the main goal of setting a fair price is to prevent the so-called two-tier (two-tier) tender offers, when the company-capturer first makes an offer to purchase large blocks of shares (for example, more than 5%), and then proceeds to buy small blocks of shares, but at a lower price. Obviously, such a scheme infringes on the interests of minority shareholders; moreover, the capturing company has the opportunity to buy the target company at a price that is significantly lower than its market price. It should be noted that a target company applying this protection method can set a fair price based on the historical value of its shares over the past 3-5 years.

As another measure of protection against hostile takeovers, by amending the articles of association, it is possible to propose the introduction of a clause in the charter of the target company, according to which persons voting on General Meeting shareholders by proxy, cannot put issues on the agenda of the General Meeting of Shareholders. This amendment will avoid the possibility of placing on the agenda of the General Meeting of Shareholders issues that are undesirable for the target company in cases where the person voting by proxy is a representative of the invading company.

Also in the practice of the United States is a fairly common method of protection through the introduction of a provision in the charter that prohibits shareholders from convening an extraordinary meeting of shareholders. In many US companies, an extraordinary meeting of shareholders is only within the competence of the Board of Directors or Director General. This rule, like the previous one, under a certain set of circumstances, will make it possible to avoid convening extraordinary meetings of shareholders at the initiative of representatives of the capturing company with the aim, for example, of removing the General Director from the position and electing his representative to this position.

Formation of a secure corporate structure

Creation of a system of cross-ownership of shares

One of the effective options for creating a protected corporate structure in the target company is to create cross-ownership of its shares. The essence of this method of protection lies in the withdrawal of the assets of the target company that are most attractive to the company-capturer through the creation of subsidiaries - closed joint-stock companies.

Such a scheme for the withdrawal of assets begins with the allocation of the property of the target company of its active part and distribution among subsidiaries. Thus, several, for example, three subsidiaries with 100% participation of the target company are organized. It is important to note that when establishing subsidiaries as a contribution to the authorized capital, they receive the most valuable property of the target company, since the ownership of the property of the target company will be the main function of the established subsidiaries.

The next stage of this scheme is the adoption by subsidiaries of a decision to increase the authorized capital by an amount exceeding the initial amount of capital by more than four times, and then the exchange of new shares between them. As a result of the additional issue, the original shares, which were distributed by the target company when establishing subsidiaries, will amount to less than 25% in the new authorized capital. Then the shares of the additional issue are also distributed among the subsidiaries, as a result of which the subsidiaries own controlling stakes in each other, and the target company does not even have a blocking stake. Thus, having created a system of cross-ownership of shares through several subsidiaries, the target company forms an equilibrium holding scheme. It is important to note that a management company can be created to manage all subsidiaries, which will act as an executive body in each of the subsidiaries, and the charter of each of them must clearly state that the voting functions of the shares of the subsidiary belong to the executive body, which and is the management company.

The system of cross-ownership of shares through the establishment of several subsidiaries by the target company can be represented as follows:

Organization of a holding structure through cross-ownership of shares between subsidiaries

Source: Gorelov Ya. Aggressive absorption: methods of protection.// Financial Director, No. 1, 2002.

A cross-shareholding system can organize the protection of a target company from a hostile takeover, not necessarily through the creation of several subsidiaries. Sometimes it may be enough to create one subsidiary with a majority stake in its charter capital of the target company (51% or more). Minority shareholders may also act as other founders of a subsidiary, contributing their shares as a contribution to the authorized capital. Thus, a controlling stake in the target company is consolidated and fixed in its subsidiary, and the Director General of the target company is elected as the General Director of the subsidiary, thus creating a guarantee of control over the target company, as well as its irremovability from the position of General Director. Such a scheme of cross-ownership of shares, proposed by the author M. G. Iontsev, is a fairly effective protection against hostile takeover, since it is practically impossible for the capturing company to destroy it by legal means.

Diversification of property and financial risks

a) control over accounts payable through an organization friendly to the target company

In order to insure the target company against a hostile takeover through bankruptcy proceedings, which is a direct consequence of the concentration of overdue accounts payable, the use of the target company of the scheme proposed below is very effective way protection from hostile takeover. In any case, the hijacking company will not miss the opportunity to use any debt of the target company for the purpose of absolutely legal seizure of the property of the target company as an interim measure in a claim for debt collection.

The essence of this method of protection is to create a special company that will be completely controlled by the owners of the target company. This will allow you to concentrate all unwanted accounts payable outside the target company, i.e. in another legal entity, the activities of which will need to be constantly monitored. Moreover, in addition to the company in which the accounts payable of the target company will be concentrated, it is advisable to create a special company through which all sales of the finished products of the target company will pass, which will minimize the risk of a sudden occurrence of obligations of the target company in case of delivery of defective or low-quality products.

Schematically, such a protection method can be represented as follows:

Control of accounts payable through a friendly company

Concentration of the most valuable assets in a separate company, a friendly target company

Any enterprise owns a certain property complex, which is the main object of hostile takeover by the invader company. In order to minimize the risk of seizure of such a property complex or its individual divisions, the target company will effectively use a protection method based on the allocation of the most valuable and attractive assets of the target company, concentrating them in other (one or more) legal entities. Protection schemes in this case may be different, as it directly depends on the composition of the property complex operated by the target company, as well as on the assets that the target company intends to protect from hostile takeover.

One example of protection is a scheme in which all operational activities are concentrated in the target company itself, while the target company interacts with external counterparties, thereby exposing itself to the risk of capture through the concentration of accounts payable. But the assets of the target company, which are the most attractive for the company-invader, are isolated in separate specialized companies-owners that do not conduct current (operational) activities.

Source: Nikitin L., Nurzhinsky D. Strategy and tactics of protection against hostile takeover. // Mergers and Acquisitions, No. 2, 2003.

Another example of protection through an asset stripping scheme is the separation from the target company and concentration on the basis of lease or leasing agreements in one company - the real estate of the target company, and in another - the means of production of the target company. Operational activities, similar to the above example, are concentrated in the target company. It is important to note that those companies in which real estate and means of production are concentrated do not conduct production activities, therefore, they do not accumulate accounts payable, and therefore, it will be quite difficult for a capturing company to sue them in order to seize property.

Thus, the above methods of forming a secure corporate structure in the target company are not the only and exhaustive options for protecting against hostile takeovers, since each individual enterprise has its own specifics of activity, which requires an individual approach. But it remains obvious that the formation of a secure corporate structure in today's business environment is necessary condition to protect your business.

Motivation of the management of the company-goals in order to focus on further growth and business development

The formation of a management motivation system in a target company to orient them to further growth and business development is an important factor in protecting against potential hostile takeovers. In modern business conditions, it is necessary to be confident in management, in the management of the target company, if the company is managed by hired managers, and not by the owners of the target company themselves. The invading company, having set itself the goal of carrying out a hostile takeover operation, will use all possible means to implement it, and bribing any of the managers of the target company is no exception. That is why the owners of the target company need to take care of the formation of a motivation system for their managers in time.

Considering this method of preventive protection against a hostile takeover, it is advisable to talk about the Company's Share Bonus Program or ESOP (Employee Stock Ownership Plan), which is widely used in international practice. It should be noted that this Share Manager Bonus Program (ESOP) was originally created as a mechanism to align interests employees and business owners, which is expressed in the transfer of a certain number of shares or a share in the authorized capital of the company to the staff. An ESOP has the potential to equalize the interests of owners and workers in much the same way that stock options give managers a greater stake in a company's future. However, as hostile takeovers boomed in the late 1980s, the use of the ESOP program as a defense against hostile takeovers became more common. ESOP allows you to increase the proportion of shares that are concentrated in persons friendly to the management of the target company. Moreover, the increased cost of obtaining a majority of voting shares among the remaining non-insider shareholders makes a hostile takeover less attractive to the invading company. Thus, ESOP has an effect similar to most other methods of protection against a hostile takeover, since by concentrating shares in friendly individuals of the target company, the vulnerability and risk of the target company becoming the object of a hostile takeover is reduced.

Use of "poison pills" (poison pills)

Poison pills at the very general view are rights issued by the target company that are placed between its shareholders and give them the right to buy back an additional number of ordinary shares of the company or to sell them upon the occurrence of a certain event. The reason for the exercise of the right to buy shares may be any attempt to change control over this target company, not agreed with the Board of Directors. Among the poisoned pills, there are two main groups:

flip-over plan

Flip-in plan is that if the target company conducts an additional issue of shares in order to reduce the share of shares already acquired by the capturing company, then the shareholders of the target company have the right to buy newly issued shares at a significant discount from their market value.

Flip-over plan occurs when, at the beginning of a hostile takeover, the shareholders of the target company have the right to demand the repurchase of their shares at a price significantly higher than the market price of the shares of the target company, and in the case of a friendly merger, on the contrary, the shareholders of the acquired company have the right to repurchase the company's shares -buyer at a price with a significant discount, which will make this transaction more expensive.

It should be noted that "poison pills" do not always mean the rights of shareholders to buy back or sell shares upon the occurrence of a certain event (in our case, a hostile takeover). The varieties of "poison pills" listed above have become widespread mainly in foreign practice. Other "poison pills" have also been developed in Russian practice. Author Iontsev M.G. gives the following definition of "poison pills" - these are various actions of the former management of the acquired target company, designed to create additional problems for the capturing company. And as the most common poison pills, he identifies various deals concluded shortly before the capture of the target company. As a rule, these are transactions for the purchase of raw materials at inflated prices or for the sale of products at reduced prices. Promissory notes issued by the heads of the target company in a situation close to the implementation of a hostile takeover operation have also become widespread. Long-term lease of real estate, destruction or concealment of documents and many other actions were taken by managers of companies - the targets of hostile takeovers at Russian enterprises. And if the target company is a monopolist in the market, then the "poison pill" may be the restructuring of this enterprise (for example, dividing it into two organizations). The newly formed enterprises will not occupy a monopolistic position in the market, and the takeover of any of them will be less attractive to the acquiring party, since it will no longer give control over the monopoly.

Use of "compensation parachutes" (golden, silver and tin parachutes)

"Compensatory parachutes" (compensatory parachutes) are terms included in the contracts of managers that guarantee significant payments to these managers in the event of a hostile takeover of the target company and the loss of their jobs (as already noted in the work, replacing key managers of the target company is almost mandatory the result of a hostile takeover).

Among the "compensation parachutes" there are three well-known groups:

* golden parachutes (golden parachutes) - compensation agreements that are concluded with top management, providing for large payments to them in the event of a change of control over the target company and the loss of their jobs as a result of a hostile takeover;

* silver parachutes (silver parachutes) - compensation agreements similar to golden parachutes, but concluded with middle management;

* tin parachutes - compensation agreements similar to gold and silver parachutes, but concluded with lower-level management and some ordinary employees of the target company.

In Russian practice, compensatory parachutes have not yet been widely used, however, there are some examples - this technology was successfully used by the Krasny Oktyabr confectionery factory in the fight against the Menatep bank. It must be said that the use of compensatory parachutes is not the most effective way to protect against a hostile takeover, however, in practice, contracts with top managers of a joint-stock company - the purpose of a hostile takeover - are included in the company's obligations to pay a very large amount of compensation in case of early termination of such a contract by the company. Without the fulfillment of such conditions, the contract cannot be terminated (the manager will be reinstated by the court), and their implementation may be difficult for an aggressive investor.

Thus, the work covered the main and most well-known preventive (strategic) methods of protection, which are the provision of the target company with early protection, which, in the event of a hostile takeover, will save time for taking and implementing the most serious measures to protect the company. However, the question remains, how should a company behave if a preventive system of measures was not taken, and a hostile takeover operation began suddenly? In order to identify the main protective measures in the event of a surprise attack on the target company, it is necessary to consider tactical methods of protection.

As noted earlier, tactical defense methods are used when the attack has already begun, or when the threat of attack is already obvious. Such methods do not require serious strategic and organizational innovations, but, as a rule, provide for the prompt solution of problems.

Among the existing tactical methods of protection against hostile takeovers, it is advisable to single out the following:

1. Organizing a buy-back (counter-buy) of shares of the target company

2. Carrying out an additional issue of shares

3. Reorganization of a joint-stock company into a Limited Liability Company (JSC -> LLC)

4. Measures that reduce the attractiveness of the target company as an object of hostile takeover:

ь Conclusion of contracts for the lease of property of the target company

l Restructuring of the assets of the target company

5. Reincorporation

6. Inviting a "White Knight" or "White Squire" to carry out a friendly takeover

Organizing a buy-back (counter-buy) of shares of the target company

Buying back shares of the target company is the most common way to protect against a hostile takeover. It is important to note that the organization of the so-called counter-purchase of shares can be carried out both by the joint-stock company itself - the target company, and by the shareholders of the target company or by a friendly external investor.

Considering the buyback of shares carried out by the target company itself, it is necessary to highlight the process of acquiring shares on the balance sheet of the target company. This method of protection is not effective enough, as it is characterized by a laborious and, in a certain situation, lengthy procedure for acquiring shares on the balance sheet. Nevertheless, this method of protection can be very useful and knowing the procedure for acquiring shares on the balance sheet is prerequisite its unmistakable organization:

Ø The decision to acquire shares on the balance sheet must be made by the Board of Directors of the target company. It is important to note that the period during which the target company can acquire shares on the balance sheet cannot be less than 30 days, and the purchase price of shares on the balance sheet is determined based on the market value of the shares;

Ш The adopted decision on the acquisition of shares on the balance sheet, as well as the conditions for such an acquisition, must be communicated to the shareholders written notice(publication, mailing, etc.) no later than 30 days before the start of the share acquisition period;

Ш Shareholders of the target company have the right to offer to purchase all or part of their shares by sending their applications to it;

Ш If the number of applications received is greater than the number of shares that the target company intended to acquire, then the applications are not fully satisfied, namely, in proportion to the stated requirements;

Ш Not earlier than 30 days from the date of sending the shareholders a notice of the acquisition of shares on the balance sheet, agreements for the acquisition of shares are concluded with them.

It should be noted that when carrying out the procedure for acquiring shares described above, the target company must not violate the following requirements:

1. In one cycle described above, you can purchase no more than 10% of your own shares

2. During the execution of all stages of the cycle, the price remains unchanged, while the target company can change its pricing policy

3. The target company cannot acquire its shares on the balance if the authorized capital is not fully paid

Violations of these requirements may lead to the ability of the capturing company to achieve recognition by the court of transactions for the acquisition by the target company of its shares on the balance sheet as invalid.

It is important to note that not every company that has become the object of a hostile takeover will decide to acquire shares on the balance sheet, since this requires a lot of money to be accumulated in a short time. But those managers who care about the fate of their business and shareholders do not spare money for this method of protection, especially if a trusting relationship has formed between the working team of the target company and its management, and the shareholders prefer to sell their shares (even if lower price) to their management than to the invading company.

However, the way to protect against a hostile takeover through a buyback of shares by acquiring shares on the balance sheet is not the most effective way. A more effective way to carry out a counter buyback of shares is to buy shares for a subsidiary. With such a purchase, the target company has freedom in the number, volume of shares acquired, pricing, as well as forms of purchase.

Carrying out an additional issue of shares

The next way to protect against a hostile takeover that needs to be considered is the placement of an additional issue of securities, in other words, an additional issue.

Placement of an additional issue of securities can be carried out in several ways:

1. placement of securities in favor of a particular person;

2. increase in the authorized capital at the expense of the company's property.

The placement of securities in favor of a specific person (shareholders or an external investor) can be accepted if the charter of the target company contains declared shares, since according to paragraph 3 of Article 28 federal law"On Joint Stock Companies" additional shares may be placed by the company only within the limits of the number of declared shares established by the charter of the company. The decision on the placement of shares through a closed subscription must be taken by the General Meeting of Shareholders in ¾ votes participating in the meeting. Such a decision can be taken if the invading company has not yet managed to accumulate in its hands a sufficient number of shares, in the presence of which it can prevent the decision of the target company. As a result, the actual share of the invading company in the authorized capital of the target company will decrease. In addition, it should be noted that the target company conducting an additional issue of shares must carefully consider the literacy and thoroughness of this procedure. Otherwise, the hijacking company will not miss the chance to take advantage of any mistakes or inaccuracies made by the target company in order to challenge the legality of the issue in court and achieve its invalidation.

In the event that an additional issue in favor of shareholders cannot be carried out due to the fact that the shareholders of the company are not ready to purchase shares of a new issue, and the company does not have an interested investor, or the capturing company managed to acquire the required number of shares, sufficient for blocking the decision on additional emission, it is also possible to use a different scheme. If this is provided for by the charter of the target company, and at the right time, information about declared shares is entered into the charter of the target company, then the Board of Directors independently, that is, without the General Meeting of Shareholders, has the right to decide to increase the authorized capital at the expense of the property of the target company ( as a result of the revaluation of fixed assets, additional capital, retained earnings of previous years). Thus, shares additionally issued at the expense of the company's property are not placed, but distributed among shareholders in proportion to their share in the charter capital of the target company. As a result total shares can increase significantly, which, accordingly, will lead to an increase in the cost of a hostile takeover and may make the implementation of a hostile takeover by the company-capturer unacceptable.

Reorganization of a Joint Stock Company into a Limited Liability Company

The reorganization of a joint-stock company into a limited liability company (LLC) is a very effective way to protect against a hostile takeover. Such a reorganization is possible only if the number of shareholders of the company does not exceed 50. When deciding to transform a joint-stock company into a limited liability company, it must be remembered that such an organizational and legal form as a limited liability company will effectively exist if the number of participants in it will not exceed 10. It is legally established that the decisions of the Meeting of Shareholders must be taken unanimously, and if any of the participants decides to leave the LLC, the company will be obliged to pay him a part of the value of its property proportional to the share of such a participant in the authorized capital of LLC. This is the disadvantage of reorganizing a joint-stock company into a limited liability company. Therefore, it is desirable that the relations between the participants of a limited liability company be related or friendly.

Given the above, it becomes obvious that the reorganization of a joint-stock company into a limited liability company has some disadvantages. But protection against a hostile takeover using such an organizational and legal form as a limited liability company can be built a little differently. The essence of such a scheme lies in the establishment by the majority shareholders of the target company of a limited liability company, the authorized capital of which is paid by blocks of shares of the target company belonging to such majority shareholders. Under such a scheme, in the event that one of the participants leaves the formed LLC, he is paid a part of the LLC’s property, which in this case will be equal to the market value of the shares of the target company owned by him, transferred to him earlier as a contribution to the charter capital of the LLC.

Measures that reduce the attractiveness of the target company as an object of hostile takeover

a) Conclusion of contracts for the lease of property of the target company

One of the effective methods of combating hostile takeovers is to reduce the attractiveness of the target company as an object of hostile takeovers. This method of protection is especially effective if the invading company is primarily behind the premises of the target company's real estate or all real estate objects. In such a situation, it would be advisable for the target company to lease the premises it owns for a long-term lease (often on preferential terms), while it is desirable that the tenant in this case be well acquainted with the target company, that is, be a friendly person to the target company. In accordance with Russian law, a lease agreement cannot be terminated or its terms revised unilaterally, that is, without the consent of the tenant. The invading company, having discovered that any part of the premises of the target company has been leased out, as a rule, loses interest in this company as an object of hostile takeover.

Along with the conclusion of lease agreements, an effective way of protection can be the pledge of part of the property of the target company, for example, as security for a loan that the target company has taken to counterbuy its shares.

b) Restructuring the assets of the target company

The restructuring of the assets of the target company should be understood as the sale or purchase of assets that are made in order to make the object of a hostile takeover less attractive to the capturing company.

Thus, the target company can sell the most attractive assets, which will instantly reduce its investment attractiveness as an object of hostile takeover. In foreign practice, the most attractive assets are called "crown jewels" or "crown diamonds" (Crown Jewels). As an example of the application of such a method of protection, one can cite the restructuring of OAO Norilsk Nickel in the form of the transfer of assets to the Norilsk Mining Company.

In addition to selling the most attractive assets, the target company may buy a business, so that in the event of a further hostile takeover, such consolidation will cause problems for the invading company with antitrust authorities or make the hostile takeover significantly more expensive.

reincorporation

This method of protection means reissuing constituent documents to another region (transfer of a legal entity), where there are more stringent antimonopoly requirements than at the current place of registration. Such protection can make it much more difficult for a hostile target company to reincorporate in another region, but the paperwork process can be time-consuming, which can make it difficult for a target company to carry out a hostile takeover defense.

Invitation of "White Knight" or "White Squire" for a friendly takeover

These are ways to protect when the target company invites a friendly investor to carry out the takeover. Such methods of protection are widely used in international practice and are called, respectively, "white knight" and "white squire".

In white knight defense, the target company attempts to prevent a hostile takeover by selling its majority stake to a friendly management company. The size of the offer that the "white knight" makes is determined mainly by how such a deal fits into his strategy. If the strategy matches, then the price may be higher than the one offered by the invading company. If the level of compliance with the strategy is low, then the price may be lower than the price of the capturing company. In practice, a situation is possible in which the capturing company, having learned about the appearance of the "white knight", will not abandon its hostile takeover attempt, but will begin to increase the price of the takeover.

The White Squire defense differs from the White Knight defense in that the White Squire does not gain control of the target company. In such a situation, the white squire, which is friendly to the target company, acquires, at the proposal of the target company, a large block of shares on a "non-intervention basis", which usually means an obligation to vote for the proposals of the target company's management. Thus, the capturing company is deprived of the opportunity to get a majority of votes at the General Meeting of Shareholders and carry out a hostile takeover.

It should be noted that the described methods of protection have not yet received such development in Russia, in contrast to Western practice.

Litigation, based on the use of legal defense, is one of the most popular types of defense used after the start of a hostile takeover operation. Speaking about foreign practice, it should be noted that more than 1/3 of all tender offers made in the United States during the period from 1962 to 1980 were accompanied by the initiation of various lawsuits by the target company. As for Russia, this method of protection also became very common during the period of rapid development of hostile takeovers. As a result of litigation, the target company may suspend and delay the conduct of a hostile takeover, as litigation, hearings, the consideration of claims in the case and the issuance of decisions are time-consuming.

The target company, using this method of defense, can initiate lawsuits with various requests based on opposition to the hijacking company. But as an example, it is advisable to cite a fairly common situation that took place in Russian practice. Very often, in the course of a mass buy-up of shares in a company being taken over, the capturing companies committed violations of the current Russian legislation. As a rule, this is due to the violation by the capturing company of the pre-emptive right to acquire shares in a closed joint stock company. To this end, the capturing company almost always uses the share donation procedure, which covers the need to draw up a share purchase agreement. In this regard, the shareholders of the company of the target company may apply to the court to invalidate the donation procedure and request to transfer to them the rights and obligations under the share purchase agreement that actually took place. And as an interim measure in a lawsuit, the court may seize not only the shares received by the capturing company through the donation procedure, but also the rest of the shares, as well as prohibit the capturing company from voting with such shares, which will lead to the loss of a significant degree of its control over the company - purpose.

Summing up the consideration of methods of protection against hostile takeovers in international and Russian practice, we can make an unambiguous conclusion that the Russian practice of protection against hostile takeovers uses a significant part of the methods that have been developed in foreign countries. However, many of the international methods of protection have not yet become sufficiently widespread in Russia, which is explained, first of all, by the difference in the very procedure for conducting a hostile takeover operation in Russia and abroad, as well as differences in the legislative framework.