CONFERINȚA "Viitorul pieței de capital românești" - Ediția a VI-a
DAN PAUL, THE PRESIDENT OF THE ASSOCIATION OF BROKERS, TO THE COURT OF AUDITORS:
BURSA 06.03.2017

ANCUȚA STANCIU (translated by Cosmin Ghidoveanu)
 
mărește imaginea
     * Dan Paul: "Majority shareholder OMV is at risk of losing its 51% stake, and the Proprietatea Fund has already rushed to reduce its stake in OMV PETROM SA"
     * Energy Ministry: "So far we have obtained ownership deeds for most of the plots"
       The Financial Oversight Authority (ASF) could intervene, through the legal means that it has available, to ask OMV PETROM to proceed to the increase of the share capital through contribution in kind with the equivalent value of the plots of land for which it has obtained the right of ownership from the Romanian Government, according to a document obtained by BURSA recently sent by Dan Paul, the president of the Association of Brokers to the Court of Accounts.
     In the document, Dan Paul, the president of the Association of Brokers says: "The share capital increase operation is important because the state has been deprived of the additional shares that it was entitled to, and furthermore, of the dividends it was entitled to out of the profit the oil company has made so far. It is obvious however that the process does not benefit the private shareholders, because the contribution in kind will be recorded on the account of the Romanian state, and all the current shareholders of the company have to contribute money in the share capital increase, to avoid dilution. Majority shareholder OMV is at risk of losing its share of 51%, and the Proprietatea Fund has already rushed to reduce its stake in OMV PETROM SA, given the expected share capital increase".
     The Ministry of Energy recently told us that it had reiterated through several notices the request made to OMV Aktiengesellschaft Austria, as buyer and majority shareholder, to do of all the due diligences in order to obtain all the ownership rights certificates (CADP) obtained by Petrom OMV and those for which the CADPs have not been obtained, which in the privatization contract are labeled "plots of land under clarification", in order to conduct the second share capital increase of OMV Petrom SA.
     The Ministry of Energy has said: "In that regard, OMV Petrom SA has conducted a number of activities in order to identify, inventory the lands used and obtain the ownership rights for those that did not hold titles. With all the complexity and difficulties of the actions for the resolution of the clause concerning the plots that are under clarification, due to the measures and efforts of OMV Petrom SA, the actions taken by the Ministry of Energy and least but not least by the external public auditors of the Department X Division 1 of the Romanian Court of Auditors, so far has been completed the drafting of the documentation, stipulated by the legislation in effect, in order to obtain the Ownership Rights Certificates (CADPs) for those plots of land. So far, CADPs have been obtained for the majority of those plots of land.
     According to the provisions of the Law no. 555 of December 2nd, 2004 concerning some measures for the privatization of National Oil Company Petrom - SA București, following the completion of the privatization process, the share capital increases concerning the plots of land under clarification will be done in two stages: concerning a surface of approximately 2000 (two thousand) hectares out of the plots of lands under clarification, within a year from the date of completion; concerning all the other plots of land in the process of clarification, within 3 months from the date when the company notifies the seller that all the ownership rights certificates have been obtained.
     The first share capital increase of Petrom was completed in the beginning of 2006. The second share capital increase will only be launched, according to the contractual provisions, after OMV Petrom will have secured all the CADPs of the plots of land which the Romanian State has transferred to the company for use or administration".
     In the notice sent to the Court of Auditors, Dan Paul states: "We want to draw your attention to the share capital performed between 2005-2006, when the representatives of OMV PETROM SA have increased the share capital of the company with the equivalent value of the plots of land which the company had secured ownership deeds for, but without evaluating them, even though that was required by the Law no. 31/1990 concerning companies. I want to clarify that at the time, one square meter of land was arbitrarily valued by the company's officials at 0.5 Euros/sqm, value which was used as the basis for calculating the awarding of the newly issued shares to the Romanian government. We are wondering how the Financial Oversight Authority, which was at the time the National Securities Commission, by its Office for Securities Records, which issued the certificate for the registration of newly issued shares, failed to note the absence of the evaluation report for the plots of land which were included in the share capital, and furthermore, who bore the obvious potential loss caused to the State Budget, if those plots of land have been undervalued".
     In 2014, OMV Petrom received an ultimatum from the Romanian authorities concerning the share capital increase with the plots of land, and the Court of Auditors sent numerous warnings concerning this failure to honor the privatization contract.
     At the end of last year, the Ministry of Energy, led at the time by Victor Grigorescu, told us that Petrom still had to obtain ownership deeds for 0.78% of the total plots of land, and it would only be able to perform the share capital increase, once it owned 100% of those plots.
     On August 3rd, 2015, OMV sent a notification based on article 7.1.1. of the Privatization Contract concerning a potential dispute arising from, and in connection with the share capital increase, as proven by the prospectus by which the Proprietatea Fund sold 6.4% of "Petrom". The prospectus states: "The object of this potential dispute concerns the detailed implementation mechanism for the share capital increase. Considering that this dispute has not been resolved through amicable negotiations, and the 180 days delay since the notification has expired, OMV could ask for the beginning of the arbitrage proceedings against the Romanian government, according to the rules of the International Chamber of Commerce, with the venue of the arbitration being Paris, France".
     Petrom was saying at the time that the share capital increase with the plots of land of the state was still in waiting and that no estimate could be done concerning the date of its implementation.
     In August 2015, the "BURSA" newspaper wrote that what was at stake was the price OMV would have to pay to maintain its 51% share in Petrom, because the contribution in kind would be recorded on the account of the Romanian state. Some sources were saying, in August, that OMV was willing to contribute to the "Petrom" share capital increase 12.7 million Euros, according to the market value of the plots of land, calculated at the time of the share capital increase, whereas the calculations of the government placed that amount at 50 million Euros.
     In 2014, the Court of Auditors found that the state did not carry out the measures decided back in 2009, concerning the increase of the share capital of "OMV Petrom" with the amount of the value of the plots of land which the company had secured an ownership deed for. 
 

 
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