Lawyers encounter the word “partner” in two forms: 1) lawyer - “partner of the firm” - this is the most honorable position, high achievement, status. Since the legal business is 90% tied to personalities, the overall success of the firm depends on the success of each specific partner. 2) Lawyer – partner’s consultant. In such cases, the term “partner” is increasingly, unfortunately, heard in combination with the words “unscrupulous” and “cheated.”

Conflict between partners is not an uncommon story, which can end positively if the partners peacefully resolved their controversial issues, or negatively if it was not possible to reach an “amicable” agreement. In the latter case, conflicts end in court proceedings, criminal cases and attempts by an unscrupulous partner to take over the entire business for himself. There are different methods for taking over a business. We have identified the 5 most popular and ranked them by degree of aggressiveness, starting with the most physically “harmless”.

No. 1. You are bankrupt.

The “malicious partner” either withdraws money to controlled structures, or deliberately creates a multimillion-dollar debt to his controlled company. As the largest creditor, this person receives "power" in the form of a casting vote at a meeting of the creditors' committee as part of a bankruptcy proceeding. This allows the opponent to fully influence the future fate of the company, in particular the procedure for withdrawing property.

No. 2. "Squeeze" of assets

Where the basis of the business is assets (real estate, production, etc.), schemes for their withdrawal are often used. An unfriendly partner, as a rule, in collusion with the company’s management, either alienates the assets that form the basis of the business, or “allows” them to be sued (sale, exchange, mortgage, etc.).

No. 3. You got married without you

Forgery of a purchase and sale agreement for shares, shares, minutes of the general meeting, illegal re-registration of data by state registrars - and the owner of the business is no longer you, but your opponent.

No. 4. Don’t swear off prison

The current criminal procedural legislation and the work procedure of law enforcement agencies allows the malicious partner to “hide” his former partners behind bars, even if they did not commit the crimes they are accused of. And after the introduction of an “absentia” pre-trial investigation and judicial review, a vacation or business trip may result in a complete loss of business and personal freedom.

No. 5. Under pressure

And finally, one of the most popular and unpunished methods, born in our turbulent times, formally having all the signs of banditry. It involves individuals who pose as members of volunteer battalions and use weapons to put pressure on businesses or to physically seize someone else's property. They work using the method of threats and pressure, promising to lift the blockade for the actions they need in collusion with their malicious partner. This is the most aggressive and dangerous method of taking over a business for owners.

But, despite the level of aggressiveness of the business takeover, such illegal actions of ill-wishers can be resisted and your business can be preserved.

What a partnership should be like so as not to encounter such problems and be able to resist them, if they do happen, we will tell you on September 29 at. Do not miss!

March 8th, 2014 , 06:01 pm

I’ll tell you using one vivid example of how to start a successful business and become a victim of lawlessness on the part of almost the entire state machine. The story is not fictional, all the facts presented in it are real, and exist to this day.

Imagine that you suddenly want to start a legal business, the basis of which is amber. In fact, amber is fossilized tree resin that has lain underground for God knows how many years.

You know that in your region there is one single enterprise that produces the raw materials you need on an industrial scale. This enterprise is not doing very well, the territory is large, the buildings on the territory are falling apart and in general you want to cry looking at it.

In order not to go far and be closer to raw materials, you rent several ruins on the territory of the enterprise, make repairs in them, stuff them with equipment and start working. Make all sorts of beads and other products. Well, it’s convenient - I bought a bag of legal, nondescript stones, made beauty out of them and sold them. In the end, everyone is happy - the mining organization does not need to bother with marketing, logistics and other capitalist bureaucracy, and you have a reliable partner and rent premises on its territory.

But some kind of crap always happens, because of which the well-oiled mechanism malfunctions - suddenly a criminal case is opened against you, and your business is blocked from any possibility of work.

All this time, raw materials are stored in your warehouses, which, in principle, do not ask to be eaten, but cannot be processed either. And then the genius bureaucrats come up with a plan. In one fell swoop they decide to promote themselves and crush you even more. They take correspondents from well-fed TV and, under the good pretext of some kind of inspection, break into your warehouse. They make a cool story about finding a treasure, tell everyone what an asshole you are, seal the warehouse and leave. All. There is a plot, but no access to raw materials. Isn't that cool?

And so you sit and think, what should you do? There are documents for raw materials. The raw material itself lies on the territory of the enterprise that mined it and sold it to you, but you cannot take the amber out. Because of this situation, you are losing money, setting up your partners and depriving hundreds of your employees of income.

The courts and other authorities understand the absurdity of the situation, but they brazenly slow down all procedures. The security forces, like kites, herd you and everyone involved with you, but they cannot present anything - because everything is according to the law.
What would you think in such a situation? Obviously, someone very influential, but not entirely smart, has encroached on your business, right?)

PS: This is what I mean. The other day I witnessed how employees of the Amber+ company, which rents premises on the territory of the Yantarny plant, cannot remove raw materials legally purchased from the same plant. That is, they stupidly don’t let cars out with cargo and that’s it. A criminal case has been opened against the owner of the company, Viktor Bogdan, and recently mask shows allegedly found illegal amber in his warehouses. On the territory of the plant that sold it. At the same time, no authority prohibits Amber+ from working and paying taxes.

Screams about “taken away, squeezed out. security forces lalala” would make sense if Ismailov was a programming genius or a biologist. But alas, this is not so. He stupidly “sat on the topic” and “kept the feeder.” The approaches changed - and it was all over. If he were a businessman, there would be no talk about Palace being unprofitable. And in Russia the house is full of such people.

It’s funny to watch the liberals jumping on the topic of “squeezing out the business, “no matter how much you earn.” Let's not squeeze out business. Topics are being pushed out. Try squeezing out, for example, Kaspersky Lab. Will not work. Any raider will go crazy. And a gas station on the outskirts of the city is easy. Because this gas station is not a business, but a gangster “theme”. Nobody promoted it for years, handing out leaflets at the metro “we are 3 kopecks per liter cheaper.” They gave a bribe, got a plot, built it, and put it into operation for the bribe. No one was involved in marketing, work processes, regulations, or security. And when BP appears 500 meters away, the whining begins about “they are clamping down on business, ohoho.” After which the “favorite child” goes for three kopecks to Shell, Neste or Phaeton, and the “successful businessman” begins, puffing out his cheeks, to tell how he was “squeezed out by the security forces.” Who needs him, what the hell are the security forces???

And so it is in almost everything. It’s just that now there is a third wave of property redistribution.

The first is, in fact, privatization. When the property of the USSR fell into the hands of just anyone, forgive the tautology. Red directors, fussy tenants, relatives of bigwigs in the administration - whoever fussed, got it. It's clear. that among them there were practically no businessmen at the subject level, all were “businessmen” “in general.” That's right, in quotes - and businessmen in quotes, and in quotes in general. Or rather, they are not businessmen at all. It was then that the equipment of the workshops went into scrap metal, and the workshops were sawn into pieces and rented out along lines on the floor.

The second wave of redistribution was when people from the financial oligarchy came to the vain owners. Here we could talk about spinning, because... the power capabilities of capital, which had managed to consolidate, were incomparable with the capabilities of a specific owner of, albeit large, but one factory, leasing space to shuttle traders. And the result was clear: those objects for which there were ideas for use were abandoned by those who did not have such ideas. Usually by force. It must be said that the mere presence of certain development ideas says little about the level of qualifications of the bearers of such ideas. And the qualifications of these carriers, although higher than those of the owners of the first redistribution, were not sufficient to survive the crises.

But time passed, the country's economy changed, competition intensified. Shopping complexes were enlarged. Enterprises specialized, worked on product marketing, merged and absorbed small change. And suddenly (around 2007-2008) we found ourselves in a situation where the increase in presence did not lead to an increase in clientele. When clientele growth did not lead to profit growth. When in a year you can grow a turnover that has been grown for ten years. In general, the time has come for qualified players. In everything.

And the old men saying “I’ve swum all the seas” started pouring out. No one cares that the old man has friends in the city administration - the administration will not give the old man likes and reposts when selling through social networks. You can proudly declare the quality of your Karelian pine boards - but they will buy from a networker, where they may be worse, but cheaper, the market is right at the entrance and you can buy screws right away. You can actively promote your models of the elderly Vlava Zayatsev, but young people will buy 100 times more from Kira Plastilinina or Dima Boyazza. Simply because they are on the Internet. and not on TV. And the third wave of redistribution is this. that the assets of previously successful businesses quickly depreciate due to changing market conditions. Fast. Unusual for everyone.

In general, those who miraculously survived two stages and kept a factory for cutting cabinet furniture are unlikely to survive the third. Simply because the generation has changed, and the mammoths of the 90s simply do not have the qualifications to work in the current market. At the same time, admitting that you have merged yourself is almost impossible. Just as it is impossible to get back your investment by selling your “charm” to some poor fellow.

That’s why the story “the security forces squeezed it out” is being circulated. Otherwise, it’s difficult to explain the move from an office with a designer chair to a dacha near Nizhny or Prague. But the fact that this is exactly a story is clearly revealed by the unsuccessful attempts to weaken at least some next businesswoman. Like Chichvarkin's wine shop - beautiful and meaningless.

That they are being squeezed out is a fact. But the number squeezed out is greatly exaggerated. And as a rule, this is not a business, as I already wrote. So, calmly trade your bicycle parts through the VK group. Who needs you, friends, what other security forces...

Since 2008, the Russian economy has already experienced two powerful crises. Both had a significant impact on the business, forcing them to tighten their belts: review strategies, capital expenditure programs, and improve the efficiency of production processes. These are traditional methods accessible to everyone, although not entirely simple and giving quick results. Some entrepreneurs also use not entirely traditional methods of preserving the value of their assets - “squeezing out” a share from a partner. It's unfair to your partner, but it's quick and effective. Below we will talk about the main signs of how this happens.

Failure to provide information

Since the 2000s, owners of Russian assets have mainly used the chain “joint company in Cyprus - shareholders in the BVI (British Virgin Islands)” for tax reasons, as well as to hide beneficial owners. Russia had (and still has) an agreement on the avoidance of double taxation with Cyprus. There was no taxation between Cyprus and the BVI and, moreover, information about the owners of BVI companies is still not public.

Now such a structure is not so relevant, since in Russia the legislation on the disclosure of information about controlled foreign companies and accounts in foreign banks has changed, but nevertheless the tradition of “hanging” a Russian asset under an offshore has remained. An additional argument for using offshore companies may be the connection to Western jurisdiction (Cypriot or English, for example) in case of litigation.

As a result, the non-controlling financial partner, having only an interest in the offshore joint venture, enjoys the protection of a thick SHA (Shareholders Agreement) and English law, as long as all is well between the partners. As soon as the situation changes for some reason, the financial partner becomes locked offshore, without access to information about the asset and deprived of the opportunity to take quick legal measures to protect their rights directly in the asset (i.e. in the Russian Federation), because Any significant decision or action on behalf of the offshore (this is the most common situation for two partners) requires the consent of the directors representing each party, and your recent partner is naturally against it.

The purpose of failure to provide information by an unscrupulous partner is to limit the evidence base in the event of litigation. And this, in my experience, is a very serious trump card in a corporate dispute. Unless you have proof that your partner is playing dirty, in Western jurisdictions it may take several years to overcome this barrier, and during this time your joint business may become someone else's.

What vaccinations can be recommended against this behavior? If we talk about your rights at the offshore level, then in this case it is necessary, for example, to stipulate in the charter/SHA the right of your director (without the participation of your partner’s director) to independently request information, convene meetings of shareholders/board of directors of the Russian asset and nominate and appoint their own candidates to the board of directors of a Russian asset. Despite all the disadvantages, the Russian legal system provides a number of effective rights in this regard that can be implemented relatively quickly.

Non-transparent ownership structure and lack of consolidated and audited statements

The term “opaque ownership structure” is used quite often, but can have different meanings. In some cases, it means it is impossible to understand the beneficiary of the company, but this is not our case. In the context of our article, the beneficiary is clear, we believe that we know our partner, and the structure of the asset itself is multi-stage and confusing. Such “opaque” elements include: (1) multiple legal entities, (2) the presence of separate sales structures, (3) cross-ownership of an asset (partners own part of the assets through a joint holding company, and part directly).

The complex structure allows for multiple transactions between group companies, hiding the real economics of individual business lines and mixing costs and income. Manipulation of profit centers is possible - the profit center can be shifted to a legal entity where the financial partner’s share is minimal.

In itself, the division of the corporate structure by function (for example, holding, production, sales companies within the structure) is not a negative factor, but such a division must have a clear logic. If it is not there, this is a sure sign that you will not be able to get a clear picture of the state of affairs.

The partner has a parallel business and significant turnover with the joint company

Having a partner own other businesses is a fairly common situation, and this is probably the easiest way to deceive a partner - to redistribute profits in favor of his own business, and expenses in favor of the joint one, especially if these are businesses in related industries. The methods of redistribution are well known: supply of raw materials through a controlled company, redistribution of working capital and lending to one’s own business through a joint one, “outweighing” costs.

Turnovers between related parties should be controlled, and corporate documents should provide for the approval of such transactions by non-interested parties. Not in all cases, the lack of turnover indicates that the redistribution of profits does not occur - if the costs are borne by a joint company (for example, on personnel), and the benefit is received by another (i.e., its own), then through the analysis of the flow of funds between companies you will not you'll see.

It is best to eliminate such conflicts of interest at the initial stage of the partnership - agree on the independence of the activities of related companies, the availability of procedures for concluding agreements with related parties and determining the terms of such agreements, or, if the businesses are so integrated, immediately, onshore, agree on a business combination.

Presentation of demands to the company from unknown counterparties

The next (already active, unlike those described above) stage of taking away a share is preparing the joint company for controlled bankruptcy. This is preceded by the appearance of claims on behalf of small creditors. These lenders, as a rule, are unknown companies that are not the main suppliers who have provided any services or made a one-time supply of goods. The case quickly comes to trial, the court confirms the existence of a debt, and if you look closely at the case materials, the joint company did not resist much and for some reason did not appeal the court decision to higher authorities. What follows is a bankruptcy filing.

Carrying out a bankruptcy procedure for a joint company with the aim of taking away a share is a slow, costly procedure that requires certain free financial resources (for example, to participate in bidding for the purchase of assets of a joint company), but in general it is completely legal and gives an end result. As a result of the procedure, your partner will most likely buy out the property of the joint venture into a parallel, already own company, having previously bought up or settled relations with external creditors who are interested in continuing to work with the new company, and your share in the joint bankrupt will lose its value.

It is possible to resist this procedure, but it is also difficult, time-consuming and expensive, and taking into account the fact that your partner will “use” the cash flow of the entire enterprise, then, unfortunately, in this situation, whoever is first has an advantage. The legislation in the field of bankruptcy has changed in recent years and it has become more difficult to fully control the procedure, subsidiary liability of persons controlling the company and the responsibility of an external manager have appeared, but, nevertheless, ensuring the fairness of the procedure requires significant financial and managerial efforts.

Guarantees for third parties

I will separately touch on the method of preparation for controlled bankruptcy, which ensures control over a significant share of creditors’ claims in the procedure. The method is simple to the point of banality - issuing a guarantee on behalf of a joint company for the company of your partner. At the same time, you, as a shareholder of a joint company, cannot in any way influence the establishment (“assessment”) of requirements for your partner’s company.

Further, if the partner managed to legally issue a guarantee in favor of his own company, the partner can provide a guarantee for your joint company and secure for himself a significant, and possibly a controlling share of the creditors' claims in the bankruptcy procedure, and therefore will complete this procedure in his own interests .

As a defense against such actions, it may be advisable to establish in the corporate documents of the joint venture your right to veto transactions (among others) to attract financing and issue guarantees and pledges.

Well, as an epilogue, general advice - carefully choose a partner, negotiate on the shore on the terms of the partnership. Ideally, you need to agree on your actions for all occasions, including the procedure for “divorce” and relationships in case of financial difficulties (for example, the need to additionally finance a joint company).

And don’t skimp on lawyers when formalizing your partnership. Your agreement must necessarily include provisions for the withdrawal of one of the participants and be drawn up with the participation of a competent lawyer. Often, partners do not have malicious intent as such, but misunderstandings that arise in life in a relationship can lead to actions that one party considers fair and acceptable, but the other regards as a manifestation of unpartner behavior that deserves a harsh response. In such cases, poorly drafted shareholder agreements can act as a time bomb, rather than limiting the parties from inappropriate behavior and offering them a civilized means of resolving conflicts.

There are many proven and proven schemes for unlawful interference in business, the implementation of which leads to the fact that ownership of production facilities, buildings, and funds passes to the invader, as does the organization itself.

Since all raider actions are carried out secretly, it is not always possible to recognize them in advance, which complicates the fight and provides additional advantages to the invaders. And this is bad news for many companies.

Forewarned is forearmed

If you do not pay enough attention to preventive measures, you may not realize for a long time that an attack is being prepared on the enterprise. Lack of vigilance leads to the fact that the company and its management are absolutely unprepared for decisive action, so there is practically no chance of survival.

Protection from raiders (Source: http://www.brd24.com/)

Experts specializing in protecting companies from invaders offer many approaches to the classification of raiding. According to the most common of them, an attack can be “white”, “gray” and “black”. If the attack occurs using completely legal methods, such raiding is usually called “white”. We are talking about acquiring a controlling stake in the enterprise, initiating inspections, and bringing workers to a demonstration.

When invaders attack an enterprise in the literal sense of the word, take its employees hostage, forge documents, blackmail management or use other methods that are contrary to the law, such raiding is called “black”. The most commonly used scheme consists of both legal and illegal actions. This is “gray” raiding. An example of such a takeover: a negative image of the company is created in the media, funding flows are artificially blocked, and pressure is put on the director of the enterprise.

You need to know the enemy by sight

The good news is that raiders are not as creative as they say, and therefore, of all possible schemes, they most often use traditional ones. The following popular capture scenarios are known:

Interaction between raiders and government agencies

An enterprise that has a debt to the budget to pay taxes is selected. This can be absolutely any fund, the main thing is that the amount is significant. The raiders initiate an inspection, which results in a demand to immediately repay the debt. The company's activities are blocked and its accounts are seized. The invader takes steps to cut off any opportunity to obtain funds needed to pay taxes, and the victim enterprise is declared bankrupt.

The raider is the company's creditor

This scenario is very similar to the previous one, except that the company being taken over is a debtor to a commercial entity rather than a government entity. A fairly common scheme is when borrowed funds are initially secured by assets or a controlling stake. If you are offered to sign such an agreement, pay attention to such a clause as the creditor’s right to demand early payment of the debt if the value of the pledged assets decreases. It represents the greatest danger and makes you extremely vulnerable. The asset valuation is carried out by an invited expert, and therefore the result will depend on which side he is on.

The most difficult situation is for enterprises whose collateral is production capacity. When they are seized until the circumstances of the case are clarified, the company's activities are blocked, and the ability to pay off the debt decreases every day. If a controlling stake is pledged, the likely outcome of the situation is a change in management.

Redemption of overdue debt

Another similar scheme is aimed at striking a company that has overdue debts to several other companies. As a rule, counterparties do not like debtors whose debt cannot be repaid. Therefore, they are happy to get rid of them, transferring their rights to third parties, even for a significantly smaller amount. This way, they gain confidence that they will return at least part of the funds that they already considered lost.

Having bought the company's debts in this way, the raider has every right to demand the seizure of the company's property until it repays the debt. The functioning of the company is impossible, business ties are destroyed, and takeover becomes inevitable.

Interaction between raiders and corrupt company employees

This scenario is based on the fact that one of the enterprise’s employees, for a certain fee, agrees to collect information about its activities for the invaders. This scheme is one of the most dangerous, because the enemy is no longer outside, but inside the organization. He provides the raider with provocative data on the basis of which court cases are fabricated. As a result, inspections begin. The corrupt official tells where to find documents confirming the commission of a crime.

At this stage the raiders come into action. They offer the owners to sell their business at a reduced value, until a criminal case is opened, and to transfer part of the assets or shares to the invaders. At the same time, pressure may be exerted on management, for example, imprisonment.

If you want peace, prepare for war

It is a fairly common belief that large enterprises are more attractive to raiders than small ones. It was formed under the influence of the media, which talk about “high-profile” cases. In reality, the opposite situation occurs. According to attack statistics, small and medium-sized businesses are usually attacked. Usually they do not have enough means to provide qualified protection, and therefore the invader does not even have to make any special efforts.

To minimize the risk of possible capture, the following measures should be taken periodically:

regularly analyze the weaknesses of the enterprise;

control debts arising to the budget and counterparties;

ensure that title documents and seals are not accessible to third parties;

adopt the provision “On trade secrets”;

checking the reliability of management personnel;

minimizing the number of employees possessing “dangerous” information;

the formation of a reliable security service, whose employees are truly capable of protecting the company from a sudden attack;

demonstrate so-called “PR activity” in order to form a positive image of the company;

order a legal review of concluded contracts if you do not have a lawyer on staff;

periodically invite an auditor controlled directly by the owner of the company.

A signal that an attack is being prepared on your company may be the appearance of new investors or a sudden request from shareholders for documents. Pay attention to the information published in the press - if articles denigrating your organization begin to appear there, this could be the beginning of a raid. A bad sign is increased frequency of inspections by regulatory authorities, as well as mass appeals to the court by your creditors.

Best defense is attack

What to do if the attack has already begun? First of all, find out who is interested in your enterprise, and prepare for a retaliatory strike. Raider wars are a dangerous activity, since their outcome is difficult to predict.