AVZ's response of 04/08/2021 to the COMINIERE's letter and opinion on the sale to ZIJIN of the 15%
May 19, 2023
Kiki Kienge
"Having this meeting with ZIIN, including a board of directors without having a prior meeting within DATHCOM is in violation of DATHCOM's statutes"
NEWSECONOMY
AVZ's response of 04/08/2021 to the COMINIERE's letter and opinion on the sale to ZIJIN of the 15%
May 19, 2023
Kiki Kienge
The COMINIERE had already begun negotiations with the Chinese group, ZIJIN for the acquisition of 15% of its shares in DATHCOM not respecting the agreements of the Joint Venture, which obliges any partner in the event of the desire to sell its shares to make a proposal to other partners, in the event of refusal or a better proposal from a third party, the seller had not the right
The COMINIERE declares that it sent a newsletter to its partner AVZ, but by "error" had sent the letter to the parent company that is AVZ MINERALS that has its partner subsidiary in DATHCOM, AVZ INTERNATIONAL.
Despite AVZ's recommendations on the risks of transactions between ZIJIN and COMINIERE, the latter continued negotiations until selling 15% of its shares to the Chinese group, a sale deemed illegal by the IGF (Inspection General of Finance):
LETTER FROM AVZ:
To \ ATHANASE MWANBA Director General of COMINIERE SA in Lubumbashi. Date 04-08-2021 Place Kinshasa Reference C1/098/MMA/08/2021
Subject Your Correspondence with reference CEM/DG/051 /amm/2021 dated 2 1/07/2021 entitled; "Application for Acquisition by ZIJIN of the shares of COMINIERE SA in DATHCOM MINING SA"
Dear DG Athanase.
Mr. Director General.
After receiving your correspondence referenced > CEM/DG/amm/2021 dated 21/07/2021, the company AVZ MINERALS LID instructed me to urgently seize the object listed in the above.
Indeed, the correspondence cited above has received all the attention of my client AVZ MINERALS, in this case AVZ INTERNATIONAL although you have sent this correspondence to AVZ MINERALS.
Already the company AVZ MINERALS LTD, in the name and on behalf of its subsidiary "AVZ INTERNATIONAL, reiterates once again its interest in the purchase of the 15% of the shares
of the company COMINIERE in DATHCOM MINING SA in accordance with its correspondence referenced "20191002/NF/mb dated October 2, 2019 addressed to the Ministry of the Portfolio after agreement with yourself.
AVZ MINERALS notifies you at the same time of its desire to receive the benefit of the right of pre-emption which would like according to our statutes that the shares are first proposed and sold to
shareholders in the company but also this comes from the agreements made between parties in the 2017 Joint-Venture agreement.
Nevertheless, your correspondence calls for some comments and reminders as part of our privileged business relationships as described intra.
I. FACTS
1.1.1. We have acknowledged receipt of your letter with the reference number Ref:
CEM/DG/051 /amm/2021 dated 21/07/2021 with the title "Application for acquisition by ZiJIN of COMINIERE SA's actions in DATHCOM MINING #.
You informed us that you were informed by ZIJIN MINING GROUP COMPANY LIMITED through its correspondence dated June 13, 2021 in which the group indicated its intention to acquire, partially or totally, COMMINIERE SA's stakes in DATHCOM MINING SA.
You also informed us that you received the "green light from your board of directors, including a general meeting of COMINIERE to start negotiating with them what you had... And you also have a meeting with ZIJIN on July 14, 2021 during which ZIJIN expressed its willingness to acquire at least 15% of the project's capital. ”
II; REMINDERS
2.1.1. You would remember we offered to buy your own shares within DATHCOM, and you gave us the green light to discuss with the government of the DRC, what we did through the Ministry of the Portfolio, and we did so in the spirit of our Joint Venture agreement, in particular Articles 6 to 7.
2.1.2. Please note that on the basis of the same proposal of the joint venture agreement that is the law between the parties yourself and DATHOMIR you are committed to supporting the efforts of AVZ and DATHCOM MINING SA to carry out the fundraising and development of the Manono lithium project.
2.1.3 As part of the same agreement, you undertook to avoid doing anything that could undermine AVZ's efforts to raise funds and develop projects knowing that AVZ is a publicly traded company with an obligation to transparency and disclose any risk to the project.
2.1.4. Any transaction on the sale of shares between shareholders having discussions outside the company in violation of our OHADA corporate governance, our JV agreement and the statutes in its articles of association.
2.1.5. Having this meeting with ZIIN, including a board of directors without having a prior meeting within DATHCOM is in violation of the statutes of DATHCOM MINING SA, the Jouint-Venture agreement and OHADA law. Our statutes require you to start first with a discussion and proposal to sell the shares to other shareholders within. We think it would be an unfortunate oversight of our own agreements and you are bringing things back into the rules by continuing the negotiations started with "VZ MINERALS LTD".
2.1.6. Continuing discussions with ZIJIN would risk affecting the PR13359 conversation into an export license because CAMI is currently examining the shareholding structure based on the information we have transmitted. Such a transaction would thus risk reducing AVZ MINERALS' efforts to raise funds in accordance with the promises made under Articles 7 to 9 of the Joint Venture Agreement signed in 2017. We think that when you realize the consequences of such an impact on the project and the difficulties that it could, you will resume discussions with AVZ MINERALS based on a long business relationship.
2.1.7. In addition, please note that if you have a transaction with third parties for the purchase of 15% of your shares, it does not mean that you are leaving the company because you have committed to give 10% of your capital to the DRC government on the basis of the JV agreement and the Mining Code.
2.1.8. Any transaction with a third party during our mining export permit application process will be considered suspicious by the government while we have submitted our shareholding structure.
Our offer
3.1.1. Based on the reasons and legal reasons mentioned below, AVZ always has exclusive rights based on our business relationships and our 2017 Joint Venture agreement.
3.1.2. We are still interested in buying exclusively 15% of your shares as previously expressed, which will include an annual advance and an amount
agreed.
3.1.3, We invite you, in the spirit of our peaceful and profitable business relations to all to respect our statutes, the provisions of our Joint Venture agreement, to abandon this negotiation process with ZIJIN, to return to the negotiating table in compliance with our right of pre-emption.
On behalf of AVZ MINERALS AVZ MINERALS (On behalf of AVZ INTERNATIONAL (PTY) Ltd)
Me Crhistian Lukusa, Esq
Attomeys at Law/ Lawyer at the Court
Momentum Affomeys & Advisor
Nous sommes toujours intéressés à acheter exclusivement 15% de vos actions (...) Nous vous invitons, dans l'esprit de nos relations d'affaires paisibles et profitables à tous de bien vouloir respecter nos statuts, les dispositions de notre accord de Joint-Venture, à abandonner ce processus de...
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