NEW TWIST IN THE PLATINUM POWER CASE : MOROCCAN KINGDOM SUES TOPOREK
The investment fund PME Croissance, of which the State is the reference shareholder through the CCG and the CMR, has decided to bring an action in arbitration against Michael Toporek, co-founder of Platinium Power, before the arbitral tribunal of Paris, under the International Chamber of Commerce, learned Le360 from a reliable source.
Due to the multiple differences between its main shareholders, the pan-African energy company Platinum Power, which has been out of business for more than three years, is now placed in compulsory liquidation.
The American Michael Toporek, both shareholder and director of Platinum Power, is accused of having violated a non-competition obligation contained in the shareholders’ agreement by having acquired AM Wind in July 2018 , through a vehicle he owns, called Brookstone Acquisition 25. This, while knowing that AM Wind held rights to wind projects of which Platinum Power claimed ownership.
The case is now experiencing a new legal twist. Advised by the Parisian firm Viguié Schmidt & Associés, the PME Croissance fund has just initiated a personal action against Michael Toporek and the companies he owns, before the Arbitral Tribunal of the International Chamber of Commerce, a source familiar with the matter tells us.
The defense of PME Croissance also accuses Michael Toporek of breaches likely to receive a criminal qualification (abuse of corporate assets, breach of trust), according to the opinion of the firm Viguié Schmidt & Associés, which Le360 was able to consult.
Initiated by the Moroccan Ministry of Finance, through the Central Guarantee Fund (CCG, renamed Tamwilcom) and the Moroccan Pension Fund (CMR), PME Croissance is a Moroccan capital investment fund with a generalist vocation (all sectors) which invests in Moroccan SMEs. In addition to Tamwilcom and CMR, its shareholders are also made up of Société Générale Maroc, the EIB, KFW, Proparco, Saham Assurance, Silatech, Averroès Finances II, GP. It is managed by MarocInvest, a subsidiary of the Africinvest-Tuninvest group. Its assets under management represent an amount of around 452 million dirhams. This new appeal follows the verdict pronounced in April 2020 by the arbitral tribunal of the International Chamber of Commerce (ICC), ordering Platinium Power to pay PME Croissance the sum of 4.95 million euros, which corresponds to the amount invested in the energy company’s round table, plus the minimum return set in the subscription contract.
“The fault committed by Mr. Toporek is quite obvious to characterize, in at least two respects. On the one hand, the obligation of non-competition which results in this case from an
express stipulation, but also from common law; (ii) the obligation of loyalty that weighed on him as a director of the company”, underlines the note from the Parisian law firm addressed to the directors of PME Croissance.
“The causal link between this fault and the damage suffered by PME Croissance also appears quite obvious, in the sense that without the fault committed by Mr. Toporek, PME Croissance would have (i) at least been able to be paid out of the proceeds of the assignment of the rights relating to the disputed wind projects and, (ii) could perhaps have faced a solvent company if the latter had been able to develop these projects”, adds the same source.
Co-created in 2012 by Omar Belmamoun, Platinum Power operates in the development, construction and operation of renewable energy projects in Morocco as well as in sub-Saharan Africa (mainly in Côte d’Ivoire and Cameroon). Platinum Power was the first actor in Morocco to obtain in 2013, concessions of hydraulic resources for the production of electricity, and this, in the wake of the promulgation of the law 13-09 which liberalized the sector of energy, in particular by providing the private sector with the possibility of selling directly to end electricity customers.