anyone read this one? ; fucking hilarious
<em data-rich-text-format-boundary="true">Le 17 octobre 2016, la COMINIERE et DATHOMIR Sarl avaient conclu un accord de joint-venture pour l’exploitation du permis 12202. Ce permis d’exploitation était devenu un permis de recherche 13359. Et, ce après la réalisation du contrat avec MMCS et la...
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The reasons for the sale of the shares of the COMINIERE
On October 17, 2016, COMINIERE and DATHOMIR Sarl had entered into a joint venture agreement for the operation of permit 12202. This operating permit had become a 13359 research permit. And this after the completion of the contract with MMCS and the forfeiture of this operating permit. PE 12202 was thus divided into two RPs, including 13689 for discharges and 13359 for the mine. The contract was amended in December 2016.
By Gaby Kuba Bekanga
Published on January 6, 2022 at 15:05:28
Genesis of the file
COMINIERE AND DATHOMIR have created DATHCOM MINING SA in which each holds 30% and 70% of the shares respectively. In January 2017, the two shareholders decided to sell PR 13359 to DATHCOM SA for operation. On November 20, 2017, COMINIERE, DATHOMIR and AVZ MINERALS signed an agreement under which AVZ MINING acquired 60% of DATHOMIR SARL's shares in DATHCOM MINING SA. AVZ paid $500,000 for this transaction. After this agreement, the share capital of DATHCOM SA was as follows: COMINIERE 25%, AVZ MINERALS 65% and DATHOMIR 10%. The COMINIERE then sold 5% to AVZ to stay with 25%.
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Five years after the creation of the joint venture, no significant activity on the site. The project remained in a research phase. This is how the COMINIERE was contacted by the Chinese ZIJIN. The latter was looking at the Manono-Kitotolo project, which COMINIERE relied heavily on thanks to a world-class lithium deposit. But, compliance with the clauses by shareholders posed a problem. AVZ obstructed the development of the project with opacity in fundraising operations.
It should be noted that AVZ is a company listed on the Melbourne Stock Exchange. She raised funds in Australia without the knowledge of the COMINIERE. The amount obtained by AVZ and its use did not allow the COMINIERE to verify or understand the assignment. Everything remained mysterious and enigmatic. Nothing has been approved by the board of directors regarding loans and advances made by a shareholder.
Questions that annoy
The construction project of the Manono camp for workers was overbilled at US$2,000,000, although it does not represent this amount. The subcontracts of US$500,000 were signed without the approval of the partners, a cavalier management in the absence of the COMINIERE agents.
In addition, once the feasibility study was ready, the COMINIERE had to give its favorable opinion for formalities at the Mining Cadastre in order to transform PR 13359 into an EP. In addition, the feasibility study sent to the COMINIERE contains an assertion that makes it inadmissible. In this study, AVZ claims to have recovered the Mpiana Mwanga hydroelectric plant, while it is a heritage of the Congolese state via the COMINIERE. AVZ has signed a memorandum of understanding with the Ministry of Energy for the rehabilitation of the said plant by zapping the owner COMINIERE. Such cheating exposes AVZ to legal proceedings. The COMINIERE requested advances on the dividends but never obtained them.
According to stock market requirements, each phase of the project must be published with the opinion of shareholders. This is what AVZ has never done with PR 13359. The COMINIERE only obtains information about it on social networks. AVZ completely ignores its partner. Are we in a conquered state or facing a raid?
Indeed, the transfer of AVZ's shares to a Chinese group without the approval of the partners is only the confiscation of property belonging to others. The COMINIERE is also shocked to learn that AVZ presented itself without its knowledge as President of the Republic, when it is supposed to defend the interests of the State. Did the Presidency buried its secular arm, the COMINIERE by dealing directly with AVZ?
Justification for the sale of 15% of the shares of COMINIERE, another episode of the film
On June 14 of this year, the Chinese ZIJIN MINING GROUPE COMPANY Limited approached COMINIERE to acquire part of its shares in DATHCOM SA. The Chinese operator proposed a "reasonable price" and another partnership for the development of the deposits included in PE 12453 and 13247. The minutes of the meeting mention that the COMINIERE sold 15% of its shares in DATHCOM and not 20% initially requested by ZIJIN. The 15% is equivalent to US$33.440,000. On July 21, 2021, AVZ informed other shareholders including AVZ of its willingness to sell its shares to allow them to exercise their right of pre-emption.
Contestation
AVZ refuted the COMINIERE's approach. By its correspondence CL/098/MMA/08/2021, AVZ accuses the COMINIERE of violating the company's agreements and statutes. He expressed his intention to exercise the right of pre-emption. For the shares offered for sale, he offered USD 1,000,000 per %, or $15,000,000 less than ZIJIN. In the meantime, the RP has not yet been transformed into an EP. In the event of transformation, the State could hold 10% of the share capital in DATHCOM SA.
Demonstration of the legality of the assignment
The session of the shares is governed by Article 9 of the joint venture contract between COMINIERE and AVZ. This article provides for a free assignment and an assignment to third parties. The first assignment states that:
"Any party may freely assign, one, several or all to the other party or to an affiliate, it being understood that, for the affiliates, the shares will be returned to the transferor if the transferee ceases to be an affiliate. The deed of assignment must provide for this retrocession". The second assignment states: "The parties agree that the shares cannot be transferred to third parties between the period between the effective date (included) and the completion of a preliminary feasibility study. Following the expiry of the freeze period, in the event of a transfer of the shares by a shareholder to a third party, the transferor shall grant the other partners the right of pre-emption described in this article."
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The COMINIERE was to notify AVZ of the number of shares for sale, the identity of the buyer and the agreed price. Each partner has 40 days to exercise his right of pre-emption. AVZ therefore has the option to block the transaction. He could decide alone in the board of directors because, the COMINIERE, because of the conflict of interest, cannot participate. She becomes a judge and party. AVZ's offer being lower than ZIJIN, it cannot block otherwise, it abuses its majority. In addition, another shareholder, DATHOMIR, did not object to this transaction.
The refusal by the president to convene the meeting of the board of directors to take note of the operation is an act of abuse of majority. This act gives the COMINIERE the opportunity to go to court because of the damage suffered if the operation is aborted.
Charge against charge, piece against document
AVZ has already sent a letter to ZIJIN with threat. However, the COMINIERE protests against this attitude and plans to seize any likely buyer of AVZ's shares. Reason? Non-compliance with the statutory provisions on the right of pre-emption.
While since September 1, 2021, the Minister of the Portfolio has accepted the sale of the 15% of COMINIERE in DATHCOM. Minister Adèle Kayinda's correspondence supports the transfer. The government approved the decision of the COMINIERE General Assembly. The approach seems irreversible. AVZ intends to go to court to challenge the transaction. He claims that he was not contacted, although correspondence was sent to him regarding ZIJIN's offer and the convening of DATHCOM's general assembly. Fake runaway? Liar poker?
The COMINIERE recently learned with amazement that AVZ International PTY Ltd has concluded a transaction implementation agreement (TIA) with the Chinese SUZHOU CATH ENERGY TECHNOLOGIES. The COMINIERE will soon go to court against this illegal session.
Unlike AVZ's illegal transactions, the COMINIERE followed the procedure. It respected the right of pre-emption of all shareholders. She waited for the statutory deadline of 40 calendar days. It applied Article 17 of the Law laying down general provisions on the disengagement of the State from Portfolio companies. This law strongly recommends the best offer from all candidates. On this point, there is therefore no match between AVZ and ZIJIN.
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