Fellow shareholders and financial supporters
posted on
Aug 16, 2011 10:59AM
Fellow shareholders: Below is an affidavit that was filed on Behalf of concerned minority shareholders in Superior court on Monday the 15th of August as part of the interim order requested by CMM for the plan of arrangement. This affidavit was backed by a 113 page exhibit list and a blackline interim order modified by our attorneys.
We requested the honourable justice to incorporate 4 changes to the order for the benefit of minority shareholders. These included, but were not limited to, the saving and scrutiny of all proxies to insure that only minority shareholders do in fact vote. Also to insure that warrants or shares that were disposed of or transferred would be scrutinized to insure their eligibility to vote. We won 3 of these changes to the order outright and in the mater of the fourth order we will appear in court in the next weeks to argue the merits. The fourth request was for the appointment of an independent chairman to conduct and scrutinize the vote. This Chairman would be appointed by the court so he/she would in fact be independent. CMM is opposing this for the moment. We can see no reason why anyone would be opposed to an independent chairperson conducting a fair vote? We will await a judges order in this regard but trust that CMM managment will see the value in this request.
I wish to add that the concerned shareholders are both grateful and beholden to the amazing amount of work and professionalism displayed by Wildeboer Dellelce and Groia and Company. After finding out about the court appearance to be held Monday morning senior staff and partners from both firms worked through the weekend to complete massive amounts of documentation and submissions. Without having such incredible resources brought to bear we would be in a much different position today. Over the past three months it has been the scrutiny of these firms that has kept this process from running us over. As retail shareholders, EVERY shareholder owes a huge debt of gratitude to these fine Solicitors and Litigators. It is expected that the MIC will be published shortly. The CSC will then begin it's activities to ensure that all shareholders are treated fairly and with the respect they, as owners of this company, deserve.
We ask that any minority shareholder who has not considered assisting in this campaign financially, to please reconsider their support. This is not meant as a solicitation of proxy nor is it meant to sway any shareholder with respect to their support or lack of support for this arrangement. The concerned shareholders wish to see their company grow and prosper and will endorse any efforts to achieve that end.
PC
Court File No.: CV-9338-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
B E T W E E N:
CENTURY MINING CORPORATION
Applicant
IN THE MATTER OF AN APPLICATION UNDER SECTION 192 OF THE CANADA BUSINESS
CORPORATIONS ACT, R.S.C. 1985, CH. C-44, AS AMENDED, AND RULES 14.05(2) AND
14.05(3) OF THE ONTARIO RULES OF CIVIL PROCEDURE.
AND IN THE MATTER OF A PROPOSED PLAN OF ARRANGEMENT INVOLVING CENTURY
MINING CORPORATION, WHITE TIGER GOLD LTD. AND 7918534 CANADA INC.
AFFIDAVIT OF XXXXXXXXXXX
I, XXXXXXXXXXXXX, of the Township of XXXXXXXXXXXXXX, in the Province of
Ontario, MAKE OATH AND SAY:
1. I am currently a shareholder of Century Mining Corporation (“Century”). I have
been a shareholder of Century since October, 2010 and currently am the
beneficial shareholder of XXXXXXXXX common shares of Century. As such, I have
knowledge of the matters to which I hereinafter depose, except where my
knowledge is based on information and belief, in which case, I have stated the
source of my information and that I believe such information to be true.
2. On March 14, 2011, White Tiger Gold Ltd. (“White Tiger”) and Century issued a
joint press release announcing a proposed business combination (the “Business
Combination”). Attached hereto this affidavit as Exhibit “A” is chronology of
events leading up to the announcement of the Business Combination. I believe the
contents of the attached chronology to be true.
3. As announced in the March 14, 2011 press release, under the terms of the
Business Combination, Century shareholders will receive 0.40 of a White Tiger
common share for each common share of Century held. Attached hereto this
affidavit as Exhibit “B” is a copy of the March 14, 2011 press release.
4. In response to the Business Combination, a group of concerned shareholders of
Century (the “Concerned Shareholders”) formed in opposition to the terms of the
Business Combination. I am a member of the Concerned Shareholders.
Press Releases Issued by the Concerned Shareholders
5. On April 18, 2011, the Concerned Shareholders issued a press release outlining
their concerns with the Business Combination. Among a number of concerns, the
Concerned Shareholders stated in this press release that it appeared to them that
the rapid signing of the binding arrangement agreement, dated effective March
11, 2011 and disclosed by Century on SEDAR on March 14, 2011 was driven by
conflicted parties that have a network of insider relationships and that at the
relevant times, the Board of Directors of Century consisted of a majority of Mr.
Maxim Finskiy appointees. The Concerned Shareholders also stated in this press
release that there has been considerable feedback from various shareholders of
Century expressing their views and concerns about the Business Combination.
Attached hereto this affidavit as Exhibit “C” is a copy of the April 18, 2011 press
release.
6. On April 29, 2011 the Concerned Shareholders issued a press release announcing
and disclosing a letter received on April 28, 2011 from legal counsel to Century.
Among other things, in this press release the Concerned Shareholders denied the
accusations of illegal proxy solicitation contained in the April 28, 2011 letter from
Century’s counsel and criticized the Century Board for attempting to muzzle
shareholder dialogue. Attached hereto this affidavit as Exhibit “D” is a copy of
the April 29, 2011 press release.
7. On May 2, 2011, the Concerned Shareholders issued a press release announcing,
among other things, that, despite the preliminary list of serious issues with respect
to the Business Combination as set out in the April 18, 2011 press release and the
provision of contact information to management, Century’s management had
failed to make any substantive response to the Concerned Shareholders’ concerns.
Attached hereto this affidavit as Exhibit “E” is a copy of the May 2, 2011 press
release.
8. On May 9, 2011, the Concerned Shareholders issued a press release announcing,
among other things, that in addition to their concerns as set out in previous press
releases, they were also concerned with the lack of a current National Instrument
43-101 compliant resource/reserve estimate for the Sigma-Lamaque gold project
operated by Century in Quebec authored by an independent qualified person.
Attached hereto this affidavit as Exhibit “F” is a copy of the May 9, 2011 press
release.
9. On May 16, 2011, the Concerned Shareholders issued a press release announcing,
among other things, that the Concerned Shareholders had been advised by a
representative of White Tiger that White Tiger was not prepared to negotiate a
different exchange ratio for the Business Combination. This press release also
sought the financial support of fellow Century shareholders in connection with the
Concerned Shareholders’ stated opposition to the Business Combination.
Attached hereto this affidavit as Exhibit “G” is a copy of the May 16, 2011 press
release.
10. I believe the contents of the press releases at Exhibits “C” to “G” to be true for the
reasons set out in those press releases and as set out in this affidavit.
Preservation of Proxies is Necessary
11. On or around February 2, 2011, around the same time the letter of intent (“LOI”)
with respect to the plan of arrangement was finalized, Mr. Maxim Finskiy, the
controlling shareholder in both Century and White Tiger, disposed of 25,500,000
common share purchase warrants and another 25,000,000 common shares of
Century. Attached hereto this affidavit as Exhibit “H” is a copy of the SEDI
report which shows the disposition of these securities by Mr. Finskiy.
12. On or around February 8, 2011, Mr. Francis Scola, a joint actor with Mr. Finskiy,
disposed of 4,900,000 common shares of Century. Less than two weeks later, on
or around February 18, 2011, Mr. Scola disposed of 1,250,000 common shares of
Century. Attached hereto this affidavit as Exhibit “I” is a copy of the SEDI
report which shows the disposition of these shares by Mr. Scola.
13. Mr. Scola’s relationship with Mr. Finskiy as a joint actor with respect to Century
goes back to at least September 15, 2009 at which time Century issued a press
release announcing a $20 million equity financing with entities controlled by Mr.
Finskiy and Mr. Scola. These entities were described in a press release issued by
Century on January 4, 2010 as “associates”. The September 15, 2009 press release
states that Mr. Finskiy and Mr. Scola have agreed to work with Century
management to build Century into a significant gold producer. Attached hereto
this affidavit as Exhibit “J” are copies of the September 15, 2009 and January 4,
2010 press release.
14. In addition, at subparagraph 22(ii) of the draft interim order submitted by Century
in this motion, Century requests that shares which are beneficially owned by, or
controlled or directed, directly or indirectly, by Mr. Finskiy or Mr. Scola be
excluded from voting at the meeting to approve the Business Combination.
15. As mentioned above in paragraph 11, the timing of these dispositions coincided
with the finalization of a Letter of Intent (“LOI”) entered into between White
Tiger and Century with respect to the Business Combination. As stated in the
recitals of the Bridge Loan Agreement filed by Century on SEDAR on March 21,
2011, the LOI was dated January 24, 2011 and accepted by Century on February
8, 2011, as restated and amended on February 17, 2011 and accepted by Century
on February 18, 2011. Attached hereto this affidavit as Exhibit “K” is a copy of
the Bridge Loan Agreement.
16. Given these dates it can be seen that Mr. Finskiy disposed of 25,500,000 common
share purchase warrants and another 25,000,000 common shares of Century just
nine days after the date of the LOI and just six days before the LOI was first
signed by Century.
17. The timing of Mr. Scola’s share dispositions as set out above in paragraph 12 also
coincides with the finalization of the LOI.
18. Since the Business Combination was publicly disclosed, and in the lead up to the
setting of the meeting date (and received date) to consider the Business
Combination, Century has issued shares in a number of financings for which the
investors were not disclosed, including:
a. On June 13, 2011, Century issued a press release announcing a flow-
through financing of 2,631,578 flow-through units (one share and one half
warrant) at a price of $0.38 per unit on May 27, 2011, for gross proceeds
of up to $1,000,000. 6% finder’s fee to be paid. On June 7, 2011, Century
announced this was increased to $1.5 million (approximately 3,947,369
shares).
b. On July 29, 2011, Century issued a press release announcing a convertible
loan agreement of $1 million which can be converted at the option of the
lender into 3,703,704 shares at a conversion price of $0.27 per share.
250,000 purchase warrants were issued to the lender as an inducement at
an exercise price of $0.30. The lender is not disclosed
c. On August 5, 2011, Century issued a press release announcing a private
placement financing of up to 4,260,000 units (comprised of one common
share and one half warrant) at a price of $0.25 per unit for gross proceeds
of 1,065,000.
Attached hereto this affidavit as Exhibit “L” are the press releases dated June 13,
2011, July 29, 2011 and August 5, 2011.
19. The motives and timing of Mr. Finskiy’s share dispositions are suspicious when it
is considered that Mr. Finskiy disposed of just over 50,000,000 common shares
and common share purchase warrants of Century at a time when he was finalizing
the terms of the purchase of Century by White Tiger, a company of which he
holds a controlling interest. It is does not make sense that Mr. Finskiy would
dispose of these shares because he thought that the Business Combination, which
he initiated and is heavily invested in, would result in a money losing enterprise.
20. In addition, as stated in the Bridge Loan Agreement attached to this affidavit as
Exhibit “K”, around the time of the share dispositions, White Tiger had entered
into multiple bridge loans with Century. These bridge loans suggest that Mr.
Finskiy did not dispose of the common share purchase warrants and common
shares of Century, as stated above in paragraph 11, because he was in need of the
proceeds resulting from the share dispositions.
21. Given these facts, I am of the belief that the share dispositions of Mr. Finskiy and
Mr. Scola, as well as the share issuances of Century as set out above in paragraph
18, are attempts by Mr. Finskiy and his joint actors to avoid the disposed and
issued shares from being excluded from the “majority of the minority” voting at
the shareholders meeting to approve the Business Combination.
Independent Chairman is Necessary
22. Mr. Finskiy owns controlling interests in both White Tiger and Century (based on
public filings I believe Mr. Finskiy controls at least around 75% of White Tiger
and 35% of Century), and has entered into a shareholder agreement with Century
and an affiliate of Mr. Scola that provides at subsection 4.1(a)(i) that certain of his
nominees be management nominees to the Board of Directors of Century. As a
result, it is my belief that the officers and directors of Century are not in a position
to truly act independently of Mr. Finskiy and exercise independent judgment.
Attached hereto as Exhibit “M” is a copy of the shareholders agreement entered
into as of December 30, 2009.
23. In addition, Century’s legal counsel, in the April 28, 2011 letter delivered to the
Concerned Shareholders, strongly implied that the actions of the Concerned
Shareholders could result in the Chairman of the meeting to approve the Business
Combination disallowing the proxies of the Concerned Shareholders. It is my
belief that the content of this letter further indicates that members of Century’s
Board of Directors and management are compromised in their ability to exercise
independent judgment in discharging their duties as Chairman, and that there is
good reason to believe the meeting will not be conducted fairly. Attached hereto
as Exhibit “N” is a copy of the letter dated April 28, 2011.
SWORN before me at the Township of )
XXXXXXXXXXXXXXXX in the Province of )
Ontario on August 12, 2011 )