The British court prescribed the rules of the game for shareholders of Norilsk Nickel

The London court forbade Vladimir Potanin to increase the package without Oleg Deripaska.
17.09.2018
Kommersant
Origin source
"Kommersant" analyzed the reasons why the High Court of London did not allow Interros to Vladimir Potanin to buy out a block of shares of Norilsk Nickel from Crispian Roman Abramovich and Alexander Abramov. This failed transaction was the culmination of a new conflict between the main shareholders of Norilsk Nickel - Interros and Oleg Rusal Oleg Deripaska. The judge agreed with Rusal's arguments that the company and Interros can only jointly exercise the preemptive right to purchase shares from Crispian if it receives offers to sell shares from a "third party". However, according to "Kommersant", Crispian after the failure of the transaction does not plan to leave the "Norilsk Nickel".

The High Court of London on Friday, September 14, published a reasoning for the dispute over the key shareholders of Norilsk Nickel - Rusal (27.8% of MMC), Interros (32%) and Crispian (6.37%) - on the legitimacy of the offer Crispian to sell partners 3.99% stake in Norilsk Nickel for $ 1.47 billion.

Crispian in February made an offer to "Rusal" and Whiteleave, a member of Interros, after it received an offer to sell shares of MMC from another structure of Interros, Bonico Holdings. Whiteleave and Rusal have, by agreement of Norilsk Nickel's shareholders, the preemptive right to repurchase Crispian shares (Right of first refusal, ROFR) in proportion to their shares in MMC, if Crispian will sell the shares to a "bona fide third party". Whiteleave immediately agreed to an offer (in March, it bought about 2.1% of MMC for $ 772.3 million, but the deal was deployed by a court decision), and Rusal said that it would only conclude it if the Crispian offer complies with the terms of the shareholder agreement and disputed it her in court. In "Rusal" they insisted that ROFR is launched only if the company together with "Interros" unconditionally accepts the offer.

Rusal also alleged that there are other arrangements between Interros and Crispian (relating to the price of the transaction, as well as the sale by the Crispian shareholders of the Baim copper deposit in Chukotka to Norilsk Nickel or Interros).

Judge Steven Phillips recognized the rightness of "Rusal", guided by the following considerations, follows from the decision of "Kommersant". It is based on the conclusion that neither the shareholders of a joint-stock agreement nor their subsidiaries and structures acting in their interests can be recognized as a "bona fide third party". A different interpretation of the agreement would, for example, block the early sale of MMC shares owned by Crispian in the event of a breach by the Rusal or Interros of its obligations under the agreement, as a result of which the rights to buy Crispian shares on ROFR should remain only with the "innocent" partner, judge. So, the party that violated the agreement could still put Crispian's offer at an overpriced price indicative of ROFR, thereby depriving the "innocent" partner of the opportunity to give a comparable amount.

The second main argument of Stephen Phillips is that ROFR could only be realized jointly by Interros and Rusal. If the parties wanted to provide ROFR for each of them separately, they could write it directly, but they did not do so using a design in which the condition is a "single right", concludes the judge. At the same time, in one of the clauses of the agreement, which are contained in the court's decision, it is stated that after acceptance of the Crispian offer, "each party - and Rusal" and "Interros" - may at any time refuse to execute the offer, "compensating Crispian for possible losses ( the difference between the market price of the shares and the price of the failed transaction), and also losing the ROFR until the agreement expires in 2023.

Based on the testimony of the parties, the judge agreed with Rusal's assumptions that Vladimir Potanin, Roman Abramovich and the deputy director of Millhouse (manages Mr Abramovich's assets) David Davidovich held repeated discussions that were not limited to selling 3.99% of MMC, but went about the whole package of Crispian and Baimskoye field. Therefore, the Bonico offer was built on the basis of "other transactions" and was inflated by the $ 200 million premium desired by Mr. Abramovich, the judge decided.

Norton Rose Fulbright senior lawyer Andrey Panov points out that the Crispian notice contained a condition under which if one of the parties refuses to exercise the pre-emptive right of redemption, the other party may buy out all the proposed 3.99%. This item only works when the notice was valid, the parties sent a joint notice on the implementation of the ROFR, and then one of them announced a refusal. But, the lawyer emphasizes, in this case the judge decided that there was no valid notification from Crispian in terms of the contract, accordingly, the ROFR mechanism did not work, so there are no consequences at all. Mr. Panov notes that a deal with Crispian shares is also possible "under a separate tripartite agreement that is not stipulated by the agreement, but the parties can always conclude such an agreement".

Interros said that the decision to appeal will be made on the basis of an analysis of the reasoning and arguments of the judge, the same source told Kommersant, familiar with the position of Crispian. Millhouse Roman Abramovich and Invest AG Alexander Abramov declined to comment. In "Rusal" in June they expressed satisfaction with the resolution of the court (on Friday the company did not answer "b").

The source of Kommersant, close to one of Norilsk Nickel's shareholders, does not rule out that Abramovich and Abramov may consider further options for monetizing their package (September 14, 6.37% of MMCs were worth about $ 1.7 billion on the market). But another interlocutor of Kommersant notes that "the situation in the MMC has calmed down," Crispian does not intend to reduce the stake and plans to remain in Norilsk Nickel's capital until the end of the agreement. At the same time, one of the interlocutors of Kommersant notes the risks of growing sanctions pressure, which make the development of the situation unpredictable.

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