19/09/2023
Sam Posted
AN OPEN LETTER TO THE SHAREHOLDERS OF AVZ MINERALS LIMITED ("AVZ" or "
the company")
Dear Shareholders
Three highly credentialed, independent, non-executive directors have been nominated to the Board of AVZ because they share the same concerns as many AVZ shareholders have expressed regarding the company’s current position.
The nominated directors seek appointment to the Board to improve corporate governance, restore critical stakeholder relations and rebuild value in AVZ for all shareholders. They have the skills and experience necessary to execute this.
Constructive engagement has been sought with the company through its Chair, Mr John Clarke, to expedite the appointments. Disappointingly, this has not been forthcoming. Therefore, we are taking this opportunity to address all AVZ shareholders in an effort to communicate the urgent need for change and to ask for your support.
Our Concerns
The nominated directors are concerned about AVZ's past corporate governance practices and the effect this has had on the company, its stakeholders and the Manono Project. There are a number of matters which highlight the need for improved corporate governance in future, including but not limited to the following:
- It has become apparent that the breakdown in relations with the shareholders of Dathcom Mining SA (Dathcom), including La Congolaise d'Exploration Miniere SA (Cominière) and Dathomir Mining Resources SARL (Dathomir), and the Government of the DRC, was far more serious and evident than AVZ shareholders were informed ¹.
- Based on publicly available information, AVZ's subsidiary Dathcom is no longer the registered holder of Exploration License PR 13359, and AVZ have failed to disclose this change.
- A recent search of DRC Cadastre Minier (CAMI)- (drclicences.cami.cd/EN/) confirms the fact that PR 13359 (the exploration license for the Manono Project), is no longer registered in the name of Dathcom, but is now registered in the name of Cominière. This is a significant change in the registered ownership and legal title of the company's key exploration tenement, and is material, given AVZ and its subsidiaries are involved in various ongoing disputes with Cominière, and that Cominière purportedly terminated the Dathcom joint venture. The search of the CAMI on line register also states PR 13359 expired on 27 December 2021. It does not disclose a new expiry date, and does not specifically state that the license has been renewed beyond that expiry date. The rights of renewal presumably attach to registered holder, Cominière, not Dathcom or AVZI. AVZ, again has not disclosed if PR 13359 has been renewed or otherwise.
- We note that the company's previous disclosure, including for the purposes of Listing Rule 5.3.3 in its last annual report, describes the company as having "a 75% interest in the Manono Project". However, in AVZ's March and June Quarterly Reports, different disclosure appears which now states that AVZ has "a 75% legal interest in the Manono Project."
- We believe the reason for this change in description should be clarified by AVZ, as the disclosure of AVZ's beneficial / economic interest in the Manono Project is now unclear.
- We also believe any change in registered ownership of PR 13359, and the risks flowing there from, are material and should be disclosed to shareholders, particularly given AVZ and Cominière are now locked in significant litigation, and Cominière's interests are hostile to the interests of AVZ.
A comprehensive and timely report of the ruling of The Lubumbashi High Court's findings on December 24, 2021, and the potential impact on AVZ's interest was and has not been provided to shareholders to consider.
- According to an Africa Intelligence Report published on April 26, 2022², the ruling included an order for the confiscation and destruction of AVZ's 75% share certificate in Dathcom and a finding that AVZ's Technical Director, Mr Graeme Johnston, had engaged in forgery. It was also reported that the Court requested his arrest. AVZ referred to recent press articles (which presumably included the Africa Intelligence Report) as 'Media Speculation' in an announcement dated May 4, 2022³, considering it 'spurious and immaterial'. The nominated directors do not suggest that the Africa Intelligence Report or the ruling itself was correct. However, given the nature of the allegations, they consider that the board of AVZ should release the aforementioned judgement in full so that shareholders can be accurately and fully informed about its content and implications.
Sales of shares by some directors and officers of AVZ are of concern.
- On 21 January 2022⁴ (a short period after the reported Lubumbashi High Court judgement referred to above), an Appendix 3Y Notice was filed on behalf of Mr Johnston, disclosing the sale of 753,000 shares at an average price of $0.865. This sale occurred before AVZ made any announcement regarding the High Court's ruling. Separately, AVZ’s Chief Financial Officer, Mr. Jan de Jager, sold all of his AVZ shares (1,917,500⁵) during the fiscal year ending on June 30, 2022. This must have occurred prior to AVZ's shares ceasing to trade on May 9, 2022.
- In its response to the ASX aware letter dated 11 April 2023 AVZ confirmed at point 1.4 that it was aware of the High Court application and judgement mentioned above prior to the judgement being made in December 2021.
- The Nominated Directors do not suggest that the sale of shares by either Mr Johnston or Mr de Jager breached any laws.
- There appears to have been a failure to disclose the true extent and nature of the relationship breakdowns with the key joint venture partners in Dathomir and Cominière (an agency of the Government of the DRC), including, but not limited to the reported letter by Dathomir dated May 14, 2021, (when the share price was 14.5c), in which Dathomir terminated the share purchase agreements, and the Cominière letter dated July 2021 (when the share price was 19.5c), disclosing Zijin Mining's interest in the Manono Project.
- The materiality of these relationships is borne out by the reference in AVZ's 4 May 2022 ASX⁶ announcement to the Ministerial Decree requiring "a harmonious and healthy cooperation between the shareholders of Dathcom as a precondition to [progressing] the development of the Manono Project" and the acknowledgment reported by AVZ in that Decree that:
"… ongoing disagreements, conflicts and differences between the shareholders […] have stalled the development of the Manono Project [with] the resulting deadlock [preventing] the State from benefiting from the development of PE 13359."
- The Zijin Announcement (dated May 9, 2022)⁷, stated “Cominière agreed to transfer 15% in Dathcom to Jin Cheng Mining and a transfer agreement was signed.” Yet AVZ’s ASX Announcement (dated May 4, 2022) appears to contradict this statement and states that “AVZ is in advanced discussions with the DRC Government regarding the purchase of Cominière’s remaining 15% interest in Dathcom". Page 5 of AVZ’s December 31, 2022, Interim Financial Report, later confirms that Cominièreconcluded a Share Transfer Agreement with Jin Cheng for 15% in Dathcom, on September 10, 2021. It appears difficult on the face of this, to reconcile these conflicting statements.
- There has been a failure to disclose the nature and full extent of the litigation AVZ and its subsidiaries have and are engaged in and the materiality of these proceedings.
- In addition to the 5 international arbitration cases, it is understood that AVZ and its subsidiaries, including Dathcom, are or have recently been parties to many additional and separate cases in-country.
- International Arbitration is often regarded as a highly risky action.
- This is borne out by Credibility International, who published a comprehensive Study of Damages Awards⁸in 241 Investor-State Cases:
- of a total population of 241 cases, claimants only won 43 cases, or 17.8% of total cases;
- of the 241 cases reviewed, only 29 related to Africa, and none from the DRC;
- the Claimants spent an average of $12.3m and 4.4 years prosecuting their claims; and
- in 18 mining cases analysed only 11 were successful with the amount awarded averaging on 34% of the amount claimed (averaging approximately $350m).
To the best of the Nominated Directors' knowledge, the only case in which an award against the DRC was made (Digoil) resulted in an award of approximately $619m in 2018 of which no funds have been recovered by Digoil to date despite seeking to enforce the arbitral award in the USA and Belgium.
Further to the above matters, it is instructive to note the share price of AVZ peaked at $1.33 on April 4, 2022
⁹. Just 30 days later, on May 4, 2022, AVZ shareholders were reassured that everything was on track with the issuance of the Mining License for the Manono Project
¹⁰. In fact, two full pages of this ASX Announcement were dedicated to conveying this impression. However, it seems that overwhelmingly, shareholders were not aware of how severely relationships in the DRC had deteriorated and the real and then present risk the company was facing in potentially losing the title to the Manono Project.
Only two trading days later on 9 May 2022, when Zijin made their Announcement
¹¹, and the share price of AVZ had plummeted to 78c, the company requested an urgent trading halt followed by a long-term suspension, which has now lasted for well over a year, with no resolution in sight. This all occurred, from an all-time trading high to suspension, within 24 business days – with a resultant loss in value of approximately AUD$2 billion, which would certainly have been materially higher, but for the request for immediate suspension.
Critically, the disclosure on May 4, 2022 did not highlight any issues of significance commensurate with what had actually occurred during this period. In fact, the Board took the very opposite stance. The above ASX Announcement, in fact, emphasised (comprising nearly 80% of its content) that the mining license was on track and imminent, whilst simultaneously, dismissing any recent press reports, as ‘speculation" and "spurious and immaterial’.
It appears that AVZ shareholders were not provided with the full story, preventing them from fairly assessing, on a timely basis, the risks associated with losing the title to the Manono Project. Until a change of board is implemented, these sub-standard disclosure practices will not be remedied and we expect that the company will continue to be unable to comply with the requirements of ASX Listing Rule 3.1 (which is the reason for its current suspension).
¹²
Looking to the future
To restore critical stakeholder relations and rebuild value in AVZ for all shareholders, the nominated directors believe it is important for the company to be meticulously respectful of the people of the DRC, its duly elected Government, and its largest trading partner China and its nationals, (noting that the DRC's exports to China are close to ten times larger than its next biggest trading partner being the UAE). After all, the challenges the incumbent board of AVZ have faced are not altogether unusual in almost every developing country throughout the globe, and that is why maintaining good relations with all shareholders of Dathcom and AVZ was and is critical in managing risk. The current Board has singularly failed in this respect.
The nominated directors further consider that a reassessment of AVZ's current and ongoing litigation strategy and exposure needs to be undertaken urgently as part of AVZ's efforts to rebuild critical stakeholder relations, have the license reinstated (a result unlikely to be available through international arbitration) and restore value for the shareholders. The sheer volume of litigation, and its costs, are diminishing shareholder value at an astonishing rate with the latest quarterly cash statements showing corporate costs running at $4.1m and a cash balance of just under $19m. With no end in sight for the various court and arbitral proceedings, and in the absence of secured funding to proceed, it is likely that shareholders will soon be asked to bear the burden of this cost, in pursuit of uncertain outcomes.
For these reasons and many more, we believe that this is an appropriate juncture for new independent directors to be considered for appointment to the Board of AVZ as a matter of urgency.
You can add your voice to those asking for immediate change, by visiting our website at
https://www.makemanonogreatagain.com/supportand sending the prepared message directly to the Board of AVZ.
Yours sincerely,
The Nominated Directors of AVZ Minerals Limited
Peter Huljich
Michael J Carrick
Download a copy of the open letter to shareholders here.
Ty Ludbrook
1 Australian Financial Review 12.12.2022, "From $4.6b to suspension: would-be lithium giant hid dispute.”
2 https://www.africaintelligence.com/...or-giant-manono-lithium-project,109780529-evg
3https://announcements.asx.com.au/asxpdf/20220504/pdf/458nzgkw14n1z3.pdf
4 https://company-announcements.afr.com/asx/avz/1f63ab0a-7a8a-11ec-b4cf-6eeaf7b2618c.pdf
5 https://AVZ_Annual Report_2022 (see Note 13(f), page 29)
6https://announcements.asx.com.au/asxpdf/20220504/pdf/458nzgkw14n1z3.pdf
7 ZijinMining-World-class Manono Lithium Mine in the DRC to be Developed Soon, Zijin Holds a 15% Interest
8 https://www.credibilityinternational.com/wp-content/uploads/2021/02/Study-Damages-Awards-2.pdf
9 https://finance.yahoo.com/quote/AVZ.AX/chart?p=AVZ.AX#finance.yahoo.com/quote/AVZ.AX/Chart?p=AVZ
10 https://AVZ Announcements - Ministerial Decree to Award the Mining Licence Manono Lithium & Tin Project
11 ZijinMining-World-class Manono Lithium Mine in the DRC to be Developed Soon, Zijin Holds a 15% Interest
12 https://announcements.asx.com.au/asxpdf/20230412/pdf/45nl0f6mvs54l7.pdf
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