How to take possession of shares if their owner is bankrupt. Case study, case №А40-42471/10

17 august 2018

PARTIES

Debtor – Sigma Capital Partners (owned by Leonid Mayevskiy) having shares in SMARTS (once one of the largest mobile operators) pledged in its favor. 
Creditors – AFC Sistema, Lotos OOO, Renstyle OOO, and others, as well as Sulby Holdings Corp. which SMARTS owner, Gennady Kiryushin, used to call a ‘friend’.

CLAIM AMOUNT

About RUR 7 billion.

REPRESENTATIVES

AFC Sistema – Vladimir Zhouravlyov (Odintsovo city bar); Vector, Lotos – Rodion Ulybin (CEO).

BACKGROUND

In 2005 a conflict emerged between Sigma Capital Partners and SMARTS: Sigma, being the operator's minority shareholder back then, bought rights of claim against another SMARTS shareholder - Angentro Trading and Investments Limited, for the amount of USD 56.3 million from VTB. The above rights of claim were secured by the pledge of the operator’s shares. Sigma instituted a number of claims and obtained rights of claim to almost 25% of SMARTS shares. Upon request by Sigma shares were arrested. Interim measures were effective for over two years and, in Angentro opinion, prevented to sell SMARTS to Vympelcom, as well as to hold an IPO. 
in case № А56-44387/2006 Angentro claimed that a raider attack against SMARTS took place and raised a counter claim against Sigma Capital Partners on debt recovery for the amount of RUR 2.6 billion which was granted. At the same time the court refused to set off the claims.

MATTER IN DISPUTE

Since 2010 Sigma is under bankruptcy proceedings instituted before Angentro claims were granted (they are not included in the register). Aggregate amount of creditors’ claims reaches about RUR 7 billion of which RUR 3.67 billion were claims by AFC Sistema.

COURT RULING

In autumn 2015 Sulby Holdings Corp. Purchased almost all claims against Sigma from creditors. Arbitrazh Court of the city of Moscow granted the claim on procedural succession, upon which Sulby Holdings Corp. became almost the sole creditor of Sigma.

COMMENT BY S&K VERTICAL

It is not rare in corporate conflicts that a dispute concerning control over an asset turns into bankruptcy proceedings, considering that declaring a company bankrupt leads to termination of powers of its management bodies. 
Acquisition of Sigma Capital Partners debts may actually mean return of corporate control over the operator’s shares. 
Sulby Holdings Corp., being included in the list of major creditors, acquires full control over bankruptcy proceedings and may count on satisfaction of its claims against Sigma, as well as on obtaining SMARTS shares pledged to the debtor upon results of bankruptcy proceedings.

 

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