Simple methods for preventing raider actions

[Бедеров Игорь Сергеевич]

Simple methods for preventing raider actions
Igor Bederov
Assistant General Director for Security, Severny Tekstil CJSC
Advisor to the President of NP "International Association of Detectives"

Article 35 of the Constitution of the Russian Federation states: “The right to private property is protected by law. No one may be deprived of his property except by a court decision. ”

Raiding - this is an unfriendly takeover or seizure of an enterprise against the will of its owners, who have a priority in the enterprise, and / or its manager. Often, the seizure of enterprises occurs on the verge of the law, that is, it is impossible to determine whether there is a violation of the law or not. When filing applications with law enforcement agencies, the latter refuse to intervene, citing the fact that in fact there is a conflict between business entities, as the offender directs significant efforts to give his actions a legitimate status.

The main signs of raiding You can specify the following:
1) These actions are aimed at taking possession of another's property;
2) Less money was spent on taking possession of another's property than the property itself was worth;
3) After the seizure, legalization of the seized property takes place;
4) The possession takes place against the will of the actual owner.

In Russian practice, there are many legal, relatively legal and illegal ways to deprive the owner of his property. The whole essence of them comes down to a few key points or indicators. Let's call them:

- the transfer of ownership is carried out by fraud with shares or shares of the enterprise;
- the transfer of ownership is carried out by fraud with the debt of the enterprise;
- the transfer of ownership is carried out by fictitious bankruptcy of the enterprise;
- transfer of ownership is carried out by forging documents of the enterprise;
- capture takes place using an administrative resource;
- capture takes place using force.

It should be noted that more than half of all raider seizures are a consequence of any process or phenomenon in the enterprise . The enterprise is sick and wolves come. An enterprise’s disease can be expressed in excessive self-conceit of the head, lack of qualified lawyers and security personnel on the staff who can prevent or detect threats of raider action at an early stage. It may also be the fragmentation of the founders, the lack of proper circulation of documents. To prevent raider capture, it is useful to analyze the weaknesses of the business, as modern raider seizures are balanced, civilized, calculated and hidden, disguised as debt collection, insolvency (bankruptcy) procedures, counterclaims, additional issue of securities, splitting / consolidation of shares, reorganization of legal entities, etc. At the same time, any business structure has certain financial and legal features that make it vulnerable to unfair business takeover. Moreover, they are not only fertile ground for lawsuits promoting raider seizure, but also for all kinds of speculations and assumptions about "raiding."

The minimum ways to prevent raider actions include the following activities:
1. Audit of constituent documents, the elimination of clauses providing for the transfer of property;
2. Organization of trade secrets at the enterprise;
3. Creation of a regime-secret department or premises for work in documents containing trade secrets;
4. Restriction of admission of persons to trade secrets and articles of association of the enterprise, as well as the press. Establishment of a clear management scheme;
5. Regularly check the status of registration documents, maintain contact with local registration authorities;
6. Business diversification, ie reduction of risks due to their distribution between different, not related to each other, areas of the company;
7. Implementation of activities under the so-called "management company" and not the direct owner of the enterprise;
8. Control of extracts from the Unified State Register of Legal Entities and Unified State Register of Enterprises;
9. Strict control and verification of signatures on documents and papers proving the counterparty’s authority;
10. It is necessary to keep document flow (with affixing requisites and numbers of incoming and outgoing correspondence, documents must be stitched and numbered);
11. Avoid concluding facsimile and verbal agreements;
12. The creation of the so-called "disturbing package of documents";
13. Attraction for the protection of private security of the Ministry of Internal Affairs;
14. Monitoring changes in the industry in which the company is engaged;
15. Distribution of the most significant assets in several controlled enterprises and the use of these assets under lease agreements;
13. If the raider seizure has already begun, it makes sense to seize its own shares to prevent their further resale.

These rules are obvious requirements of information and internal security of any enterprise. However, often even such basic protection from raiders is not respected. The result of this heedlessness can be a raider seizure, the result of which will be the transfer of business into the wrong hands, the ruin of the enterprise, huge losses.

Separately, it should be said about the disturbing package of documents , This is a fairly effective tool to protect the company from raider capture. “Disturbing package” - a set of documents that allows, in the event of a raider seizure of an enterprise, to implement the necessary legal measures to counter and minimize losses.
An “alarm package” is formed from a minimum of documents of your company that must be submitted to the internal affairs bodies with a statement in case of a sudden attack and seizure of your business.
Recommended content of the “Disturbing package”:
1) Notarized copies of all constituent documents:
- The charter of the enterprise (as amended);
- minutes of general meetings;
- Orders on the appointment of the head, chief accountant;
- samples of signatures of all shareholders and founders, the head and chief accountant;
- experimental samples - two pages of free text;
- Signatures - full name and surname and signature on two lined sheets of 10-15 signatures per page;
- free samples with signatures - any working documents, letters, notes, arbitrary notes made in the last one or two years;
- organization printing samples on two or three sheets, alternately on a soft and hard surface;
- explanations of all shareholders that they did not participate in other meetings of shareholders;
2) A notarized copy of the register of owners;
3) Notarized copies of certificates of ownership of real estate;
4) a certificate of the market value of real estate.
Finally, and most importantly, access to the “Alarm package” should be as limited as possible. Otherwise, you risk transferring to the hands of the attackers all the documents necessary for them to carry out the capture.

Other recommendations for the prevention of raider capture:
- careful selection of managers;
- Organization of an effective legal service and the Security Council;
- maintaining its own shareholding;
- execution of shares in nominee holders, in trust;
- organization of cross-ownership (within the framework of subsidiaries) of a part of shares or shares in the authorized capital;
- inclusion in the charter of the company of provisions that impede the seizure of the company;
- building a controlled system of encumbrances on blocks of shares and fixed assets;
- insurance by large shareholders of title rights to shares;
- continuous internal audit, checking the status of documents, their protection;
- checking the storage conditions of the seals and protecting them from falsification.

Source: Director of Security
Link: https://www.s-director.ru/magazine/archive/viewdoc/2013/11/968.html