CONFERINȚA CODUL INSOLVENȚEI - Ediția a V-a
BURSA 15.12.2014

ADINA ARDELEANU, LOREDANA DUMITRAȘCU (Translated by Cosmin Ghidoveanu)
 
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     According to the report of the prosecutors, business people Dragoș Bîlteanu and Najib el Lakis have embezzled money from SIF Banat-Crișana, by acquiring "Azuga Turism", with the help of lawyers Nicolae Mergeani and Victor Prodan, and the proceeds of that deal went towards increasing their stake in SIF1, exceeding the legal holding cap of 5%.
     Dragoș Bîlteanu and Najib el Lakis were detained last Monday, following searches that the prosecutors of the DIICOT conducted at the offices of SIF Banat-Crișana, SIF Muntenia and Swiss Capital, and arrested on Tuesday, for 30 days, in a case containing charges of embezzlement, stock market manipulation and money laundering.
     The investigators showed that "Azuga Turism", spun off from Romenergo SA, controlled by Gheorghe Bîlteanu (father of Dragoș Bîlteanu) and Nabil Lakis (brother of Najib Lakis), became the property of SIF Banat-Crișana - where Dragoș Bîlteanu served on the Board of Directors - via Romenergo Holdings Limited, through a procedure which was intended to cause the trail of the company go cold.
     To summarize, prosecutors think that Dragoș Bîlteanu operated as follows: a stake of 96.87% of Azuga Turism was sold to an off-shore - Mergina Holdings Limited (which according to the report of the prosecutors, appointed Lakkis Ep. Ammar Lakkis Sahar - the sister-in-law of Nabil Lakis, brother of Najib El Lakis, as the beneficiary of the account of the tourism company). The company was then sold to Fratelli Azuga (later renamed to Torch Invest, controlled by lawyers Nicolae Mergeani and Victor Prodan), from where it ended up in the portfolio of SIF1.
     Given the origin of "Azuga Turism" and his position of CEO of SIF1, Bîlteanu may have been involved in a conflict of interest.
     With the money it got in exchange for the stake in Azuga Turism, "Torch Invest" bought shares in SIF1 from "Industrialexport" and "Romenergo", companies acting in concert with the Bîlteanu-Lakis group, and, in the end, "Torch Invest" was acquired by "Mergina", according to the investigators.
     In August 2013, the representatives of SIF Banat Crișana sent a statement to the press in which they said that the acquisition of "Azuga Turism" was not performed using an affiliate person, which, in light of what the prosecutors claim, is false.
     In October 2013, Dragoș Bîlteanu told "BURSA", in an interview:
     "Concerning Azuga Turism - this acquisition was made during the term of the previous Board of Directors, after I took over the position of chairman (ed. note: while Bîlteanu was acting CEO).
     This is an acquisition that we have worked on for several months, it has been thoroughly documented through due-diligence both with our in-house experts, as well as through outside consultants, and we think that the price it was concluded at was very good for the SIF (a significant discount of approximately 50% compared to the evaluation of the company's net assets). "Azuga Turism" owns significant assets in the Azuga resort, namely the modern gondola lift (its most important asset, valued at a relatively low price compared to the other similar investments in the area), several important plots of land in the best areas of the resort, a hotel with all the required facilities, as well as several public catering facilities. The company has no difficulty in repaying the outstanding part of the bank loan, which is insignificant compared to the value of its assets".
     * The route followed by "Azuga Turism"
     "Azuga Turism" was incorporated in 2011, being spun-off from "Romenergo" SA, taking over the real estate assets of Azuga, as well as a loan of 16,067,150 lei from BRD, contracted by Romenergo SA, controlled by Romenergo Holdings Limited. The prosecutors maintain that Gheorghe Bîlteanu (father of Dragoș Bîlteanu) and Nabil Lakis (brother of Najib Lakis) are the real beneficiaries of Romenergo Holdings Limited, which would suggest that they are the owners.
     The investigators state that "Azuga Turism" was sold to "Romenergo Holdings Limited" by off-shore company "Mergina Holdings Limited Nicosia" for an estimated 1 million Euros, in May 2012. The representatives of Azuga Turism filed with BRD a statement concerning the true beneficiary of that company's account: Lakkis ep. Ammar Lakkis Sahar, the sister-in-law of Nabil Lakis (brother to Najib El Lakis), judicial sources say.
     In July 2013, "Mergina Holdings Limited" sold "Azuga Turism" to "Fratelli Azuga" SRL București (later renamed SC Torch Invest SA and controlled by lawyers Nicolae Mergeani and Victor Prodan - see insert), in exchange for approximately seven million Euros, of which a downpayment of 250,000 Euros was paid, and the rest was going to be paid in installments, and in February 2013, "Azuga Turism" was sold to SIF Banat-Crișana in exchange for 20,340,000 lei (approximately 5 million Euros), which was paid immediately, according to the report of the prosecutors.
     Torch Invest used the money it was paid by SIF1 to repay a loan of 250,000 Euros to Nicolae Mergeani and to buy shares in SIF Banat-Crișana from the stock market.
     "By corroborating the bank transactions with the stock market trades, it was found that the amounts that SC Torch Invest SA received from SIF Banat-Crișana SA were used to buy shares in SIF Banat - Crișana SA once again from entities controlled by Bîlteanu Dragoș-George and El Lakis Najib, thus concealing the concerted holdings which the law no. 297/2004 prohibits, but by using funds that belonged to SIF Banat-Crișana", the prosecutors' report states.
     According to the investigators, one such example would be the acquisition, by "Torch Invest" of 2,442,000 SIF1 shares from Industrialexport SA and Romenergo SA, which had reported their acting in concert with Dragoș Bîlteanu and Najib Lakis, as well as the fact that they had exceeded the 5% holding cap in the SIFs. After the transaction, the group pared down its holdings, to 4.55%.
     At the end of March 2013, "Torch Invest" held 2.51% of SIF Banat-Crișana. Its stake had remained the same, according to a report on June 30, 2014, according to the sources.
     Investigators note that the final stage of the agreement between Dragoș Bîlteanu, Najib El Lakis and Nicolae Mergeani consisted of having "Mergina Holdings Limited" acquire "Torch Invest" SA, through the conversion into shares of the receivable it had against it, as a result of the sale of "Azuga Turism", as no installment had been paid, which is what should have happened according to the initial agreement.
     After the acquisition of the block of shares from "Azuga Turism", SIF Banat-Crișana participated with 9,180,310 lei in the share capital increase of the company, amount which would have been used to repay the loan that Romenergo had taken out from BRD and which had been taken on by "Azuga Turism", upon the spin-off, according to the judicial sources.
     In order to hide the connection between the purpose of the share capital increase and the real beneficiary of the operation, in 2013 a refinancing loan from Banca Transilvania was taken out in April 2013, the report further mentions.
     In the case, the prosecutors of the DIICOT are also making charges of market manipulation in the case of transactions made in September 2013, as well as of embezzlement from SIF1 through the investment in the Globalworth fund, created by Greek businessman Ioannis Papalekas, who subsequently acquired the Bucharest Tower Center (of Victoriei Square) building, of which half was owned by Dragoș Bîlteanu.
     SIF Banat-Crișana denied that information, by telling us that it has never traded, owned nor does it currently hold any shares issued by Globalworth Real Estate Investments.
     Prosecutors show that the facts were committed as SIF Banat-Crișana and SIF Muntenia are selling the stakes in Erste and BRD (liquid and profitable), in order to raise cash to carry out their own interests, to the detriment of minority shareholders.
     The investigators also claim that Dragoș Bîlteanu owned more than 25% of SIF1 together with other shareholders, thus having control of the company.
     The shares were owned through Oshia Holdings Limited (4.99%), Aris Capital SA (4.55%), Macelia Investments Limited (4.4%), Monticlifti Management Limited (2.53%), Torch Invest SA (2.51%), Smart Capital Investments (4.45%) and SIF Muntenia (2.18%).
     Given these circumstances, it seems that the Bîlteanu group has behaved as if the 5% holding cap had already been lifted and it was hoping they would become compliant once it would be.
     The dropping of the holding cap in the SIFs was proposed in the first version of the draft for amending the capital market law, announced by the Ministry of Finance on October 7th, but it was removed from the next version of the draft (November 7th).
     In September 2013, Monticlifti Management Limited SRL sued SIF Banat-Crișana, demanding the reduction of the quorum requirements for the general shareholder meetings, in line with the provisions of the law no. 31/1990 concerning Romanian companies.
     One month later, the Board of Directors of SIF Banat-Crișana decided to reduce the company's share capital, based on article of the company's bylaws, according to a report sent to the Bucharest Stock Exchange.
     At the time, there were multiple opinions which claimed that the reduction of the share capital of SIF1 without holding a General Shareholder Meeting was illegal, and the ASF later did not allow the operation to proceed.
     In the last two years, SIF Banat Crișana has not paid out dividends.
     According to some sources, the losses in this case amount to approximately 14 million Euros. 

     *  The executive management of SIF1 announces that it will summon the shareholders, in compliance with the request of the ASF
     The management of SIF1 Banat-Crișana announced on Friday, that it would take the necessary steps to convene a shareholder meeting within 30 days, as requested by the Financial Oversight Authority (ASF), after the latter withdrew the authorization of Dragoș Bîlteanu for serving on the Board of Directors of SIF Banat-Crișana (SIF1), and denied the application for the authorization of Najib El Lakis for a position on the Board of Directors of SIF1.
     Through a communiqué signed by vice-president Ștefan Dumitru, the Board of Directors announces that it has set restrictions on the capacities of deputy CEOs, as Dragoș Bîlteanu has also lost the position of CEO. SIF1 has also announced that the Board of Directors will meet as a matter of urgency whenever necessary.
     *  How "Fratelli Azuga" became "Torch Invest"
     "Fratelli Azuga" was incorporated in June 2012, having as shareholders Daniel Caramihai and Nicolae Mergeani, with equal stakes. According to the prosecutors, the company had its registered headquarters at the address of law firm SCP Mergeani, Prodan și Asociații, , who also state that in the beginning of 2013, Victor Prodan was co-opted as a shareholder, with a stake of 20%, and the other two shareholders reduced their holdings to 40% each. Prodan later acquired the stake of Caramihai. In February 2013, the company changed its name to Fratelli Invest SRL, and in March became Torch Invest, and changed its registered office in April 2014, the prosecutors further state.
     *  The charges of manipulation
     The case of the embezzlement from SIF1 Banat-Crișana also contains charges of market manipulation, in the case of trades which took place in September 2013.
     At the time, the quote of SIF1 rose spectacularly in the last moments of the Friday, September 13th session, and on Monday, September 16th, 2013, a block of shares of 6.27% was transferred at a price 14% higher. At the time, the ASF announced that it was investigating the trades in question, and it later notified the DIICOT.
     In March, the Financial Oversight Authority (ASF) levied fines of 70,000 lei at Swiss Capital, for the trades in question.
     Also in March, the ASF forced the group of SIF Banat-Crișana shareholders made up of Dragoș Bîlteanu, the CEO of SIF1, El Lakis Najib and companies Romenergo, Smalling and Gardner (registered in Cyprus), presumed to be acting in concert, to sell 6.72% of the shares of SIF1 and thus comply with the holding cap of 5%, within three months.
     At the time, Dragoș Bîlteanu said that the decision of the ASF was abusive. In October, the group announced it had paired its stake to match the legally allowed limit.
     In proving the acting in concert, the ASF took under consideration that Smalling Limited and Gardner Limited had bought shares in SIF Banat-Crișana with funds borrowed from firma Cahuita Limited. The real beneficiary of Cahuita Limited was Ali H. Lakis from Lebanon, according to information supplied by the Cyprus Securities and Exchange Commission and obtained with the help of Bank of Cyprus, the decision of the ASF states.
     Ali H. Lakis was also a member on the Board of Directors of SIF1, and Najib El Lakis and Dragoș Bîlteanu declared themselves as acting in concert with "Romenergo".
     According to the information sent by the ASF, Gardner Limited held 3.21% of the shares of SIF1, whereas Smalling Limited held 3.94%.
     Ali H. Lakis resigned from the Board of Directors of SIF1 on December 5th.
     In March, Dragoș Bîlteanu told us that he had no information about the holdings of Smalling Limited and Gardner Limited or whether any of those companies had bought the blocks of shares of SIF1 traded on September 16th, 2013.
     In September 2013, market sources told "BURSA" that Sibiu businessman Alin Tatu had sold his 5% stake in SIF1 Banat Crișana, following the transactions made on the "Deal" tier of the BSE, after the spectacular rise of the stock.

 
 

 
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