The claim to invalidate the agreement of Leonid Goldenberg, Evgeny Lachkov and Denis Frolov on the sale to the latter of 64% of the authorized capital of NCC was sent to the Moscow Arbitration Court, a representative of the plaintiff told Vedomosti.
On June 2, a meeting of NCC shareholders is scheduled, which will consider the issue of electing Frolov as its president instead of Alexander Kalinin, who now holds this post, who owns 33% of NCC, the statement of claim read by Vedomosti says. Now Frolov is a co-owner of a large IT holding, which includes the developer of the domestic Astra Linux operating system Rusbitech, processor manufacturer Baikal Electronics, and other companies, the total book value of which is estimated at 10 billion rubles, the plaintiffs say. In their opinion, the merger of NCC’s key asset – “Aquarius” (a manufacturer of computers, servers and other electronics) with Rusbitech LLC and “Baikal Electronics” will lead to the creation of the largest vertically integrated holding in the Russian Federation in the radio electronics market, which has a significant advantage in participation in tenders for state needs. “Thus, the unification of two groups of persons into a single structure – a single economic entity, without the control of the FAS Russia may lead to restriction of competition and infringement of the rights of third parties in various product markets,” the statement of claim says.
If Frolov becomes president of the NCC, to acquire shares in the corporation, he will not need to obtain the consent of the FAS, since under the Law on Protection of Competition, intra-group transactions can be carried out without the consent of the antimonopoly department, the statement of claim says: “Actions and transactions are obviously abuse of Frolov, Lachkov and Goldenberg with the rights granted by law, are aimed at achieving anti-competitive goals and ultimately may lead to infringement of the interests of end buyers of domestic computer equipment … “
“We are glad that Goldenberg and Lachkov started to act constructively and canceled the illegal shareholders meeting, which they were going to hold on May 31st. Therefore, we withdrew the claims related to this meeting, – notes the vice-president of the NCC, the son of Alexander Kalinin, Alexey. “At the same time, we consider it necessary to protect the company’s assets from an unfriendly takeover by Frolov, and we consider an attempt to appoint him president of the NCC to be a gross violation of antimonopoly legislation.”
Kalinin does not understand the desire of Goldenberg and Lachkov to appoint a competitor of the concern as president of NCC: “This does not meet either the interests of the company or the development of the industry as a whole. Therefore, we expect that the FAS will pay attention to this case and give its assessment. We also believe that the circumstances of the transaction between Frolov, Goldenberg and Lachkov, as a result of which they want to transfer the management of NCC to a competitor of Aquarius, should be studied in detail, especially in the part that violates the rights of Alexander Kalinin regarding the preemptive right to repurchase shares. “
The conflict between the shareholders of NCC and the desire of Lachkov and Goldenberg to sell the shares of NCC to Frolov became known in April this year. According to the Kalinin family, she intended to buy out 64% of the authorized capital of the corporation from partners, but they found another buyer. After that, the charter of Aquarius (the value of this asset was previously estimated by experts at 38-40 billion rubles) was changed in such a way that Goldenberg and Lachkov were actually removed from the management of the company through NCC, they complained in a lawsuit filed with Moscow Arbitration in early May … They estimated their damage from these actions at a little more than 260 million rubles, a little more than 509 million rubles. amounted to the damage caused by the NCC, follows from the pre-search statement, which the representatives of Lachkov and Goldenberg sent to Kalinin at the end of May.
“If we talk about the essence of the claims, they are absolutely unfounded,” a lawyer representing the interests of Goldenberg and Lachkov told Vedomosti. – The claim disputes a certain “agreement” between Goldenberg and Lachkov on the one hand and Frolov on the other – the author of the statement of claim does not even hide that he doubts the existence of such an agreement. And he is right – there is no such agreement today. Consequently, the subject of the dispute is also absent, which means that the claim should be rejected. “
The lawyer of Goldenberg and Lachkova believes that Kalinin is trying to mislead the court and market participants and, most likely, get interim measures.
“From the point of view of the computer market participants, such a formulation of the question is quite logical,” believes Alexander Ermolenko, partner of FBK Legal. – However, from the point of view of the Federal Antimonopoly Service, the market shares of manufacturers are important. Therefore, the antimonopoly department will most likely be involved in the proceedings and, asking experts, will find out how much their influence on the market will grow after the merger of Frolov’s assets and NCC structures. “
“The appointment of a general director, even in a company like NCC, does not require prior approval from the FAS Russia,” says Stanislav Borodaev, a lawyer for Forward Legal. – It should be noted that the absence of preliminary approval of the transaction gives only the FAS Russia the right to bring a claim to invalidate the transaction. This is an exclusive power that is expressly provided for in the law. Other persons are not entitled to challenge the transaction with reference to the protection of public order, in particular the protection of competition. “
Most likely, the court will conclude that the applicant has no right to claim, and there are no factual circumstances in respect of which such a claim could be brought, Borodaev said.
The FAS Russia did not receive a request for approval of the transaction from the specified persons – Lachkov, Goldenberg and Frolov, the press service of the department reported: “Antimonopoly approval is required when a transaction is concluded between a buyer and a seller, if the value of the buyer’s assets exceeds 7 billion rubles, and the seller – 400 million rubles A conclusion about the impact of the transaction on competition can be made only after analyzing the materials in case of receiving a petition. “
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