Focus with shares
The subject of a dispute between Dobrinsky sugar factory (part of the group Sucden) and Lipetsk company “Agribusiness” were 100%, OOO Molochnaya Kompaniya Agribusiness, Malmagro”) pledged under the pledge agreement in March 2015. “Malmagro handles 3.5 thousand hectares of leased agricultural land and has a herd of cattle more than 1 thousand heads. According to “SPARK-Interfax”, the company’s revenue in 2015 amounted to $ 194,2 million roubles, net profit — 23,7 mln.
In June 2016, in Interdistrict inspection FNS of Russia ?6 in Lipetsk region received a statement on changes in incorporation to increase the authorized capital Malmagro” signed by the Deputy General Director of Dobrinsky sugar factory Catherine Nazarkina (RBC). According to the document, the pledgee has decided to reduce the share in the Charter capital owned by the current owner of the company Alexander Chil-Akopov, with 100 to 6.67% due to the entry into society of a new participant, Yuri Kamysheva. The person with such name and surname is the General Director of one of the holding companies of the group Sucden — OOO Sucden Brandnames Marketing.
On 14 July the Arbitration court of Lipetsk region declared the decision of the General meeting of participants of LLC “Malmagro invalid and blocked transactions in the register. The appeal in this case will be considered on 9 August.
The opportunity to amend to EGRUL to bypass the court came to the mortgagees, after 2014, article 358.15 Civil code of the Russian Federation “Pledge of rights of participants of legal entities” was amended. It provides that unless otherwise provided by the contract of pledge of shares in the share capital of the company, the rights of a participant shall be held by the mortgagee.
“It’s the focus associated with corporate shares. You don’t get the asset itself, but are entitled to voting rights and, accordingly, the right to make decisions, including about the blurring of the shares in the asset,” explains the partner of lawyer Bureau “Egorov, Puginsky, Afanasiev and partners” Dmitry Stepanov.
Previously, under the Civil code, the rights under the pledge of shares remained with the mortgagor, regardless of were the shares in JSC or LLC. The amendment was designed to increase the attractiveness of the company as collateral: often lenders are not at risk of contact with legal entities of this type, perceiving them as a tech company or a company dummy.
Meanwhile, the lawyer of practice on dispute resolution, Goltsblat BLP Stanislav Gabszewicz notes that the practice of inclusion in the collateral a lot of assets of LLC is quite widespread in the real sectors of the economy, such as agriculture or metallurgy, because unlike financial assets, agricultural land or factories is much harder to translate to another legal entity.
“While this is the first known case where the new rule is used for the interception of corporate control for the benefit of employees of the mortgagee bypass the existing procedure of foreclosure on the collateral,” — says the partner of law offices of EMP Mergen of Dorai, representing the group of “Agribusiness”. According to him, the new rule on automatic transfer of rights of the LLC member to the mortgagee poses serious risks for companies using the Deposit of the share capital.
Interviewed by RBC lawyers disagree on the legality of such actions, but a single that has not previously faced such cases in disputes over corporate assets. “This is a precedent. The new rule was adopted in 2014 — said independent lawyer Grigory Chernyshov. — Subject to certain conditions, the mortgagee has the right do enforce rights of the participant companies. The prospects of this case is difficult to assess, but if the parties have not provided otherwise in their agreement on the pledge, the previous owner will be difficult to assert control over the company. Thus, according to Chernyshova, talking about a hostile takeover is not. “Just the mortgagee took advantage of the opportunities that he voluntarily provided the mortgagor”, — says the lawyer.
“After making changes to the RF civil code rules on the Deposit revealed a large number of law enforcement problems and options for abuse — this is logical, since the rules are more flexible, and tried and tested judicial practice yet,” — says Stanislav Dobrevich.
The unusual situation is that, according to Dobravica, a norm aimed at protecting the rights of the mortgagee against the depreciation of the collateral. “Naturally, no one imagined that the mortgagees will try to circumvent a judicial foreclosure on a share in the LLC thus,” says the lawyer. In his opinion, such actions in the judicial bypass procedure illegal not only because it reduces the value of the mortgaged property, but also because it can be qualified by the court as the abuse by the pledgee of his right.
The origins of the dispute
In March 2015, the owner of the agricultural company “Milkagro” Alexander Chil-Akopov has mortgaged 100% shares of the company to its counterparty Dobrinskogo sugar factory to get an advance for next harvest of sugar beet. Funds were required for sowing. Pledge agreement (RBC) touched on several supply contracts. So, OOO “Milkagro” agreed to supply 23 thousand tonnes of sugar beet, and the company “Agribusiness”, whose main owner with a share of 49% is also the Chil-Akopov, two contracts — 48 thousand tons. the Contract provided for deviation from the delivery volume by 5%.
To comply fully with its obligations under the supply of “Agribusiness”, however, failed, according to Chil-Akopov, “due to the blowing of crops”. According to him, the company failed to supply about 15 thousand tons of sugar beet.
In February 2016 dobrinskiy sugar factory has addressed with the claim in Arbitration court of the Lipetsk region with the requirement about collecting of the Deposit, in addition, “daughter” Sucden required to reimburse the amount of lost profits due to the short supply in the amount of about 32.1 million RUB.
“We did not deliver part of the contracted volume, but under the law there are mechanisms of compensation, and they must be in the legal field. Breach of contract can not be a reason to ensure that our contractor could take over the company, ” says Chil-Akopov. We were confident in the partners, therefore, even could not assume that the registration of pledge may lead to a similar situation”.
Financial Director Sucden in Russia Gleb Tikhomirov claims that his company for many years, in fact, saved “Agribusiness” from bankruptcy by giving her a huge advance payment for sugar beets. “This condition was that the entire crop of sugar beets should go in dobrinskiy sugar factory”, — said a top Manager. According to him, the patience of the company ended after the fall of last year revealed that “Agribusiness” started to supply sugar beet to other plant. “After that, we took them a lawsuit in the court of the Lipetsk region with the requirement about indemnification. In parallel, was directed the claim about providing our requirements and the transfer of the shares in the company, “Milkagro”, — said Tikhomirov.
In may, the Lipetsk arbitration has refused the claim, citing the fact that the plaintiff is not indicated and is not objectively confirmed the violation of his rights by OOO Malmagro”. In addition, under the pledge agreement by the person obliged under the transaction, was Alexander Chil-Akopov, litigation claims as to which the person should be considered in the court of General jurisdiction. After that, Sucden attempted to reduce the share of the entrepreneur through the adoption of a new participant, increasing the Charter capital of LLC “Milkagro”.