VANCOUVER, Feb. 18, 2016 /CNW/ - Alternative Earth
Resources Inc. ("AER") (TSX.V: AER) announced that on
February 17, 2016, Mr. Justice Walker of the British Columbia Supreme
Court (the "Court") issued Reasons for Judgment in the
second petition filed by Jaguar Financial Corporation
("Jaguar") against AER and three of its directors (the
"Second Petition"). The Court found that various conduct by
AER since December 10, 2015 was
oppressive or unfairly prejudicial to Jaguar and granted orders
restricting AER's conduct in advance of an Annual General and
Special Meeting of shareholders (the "AGM") and relating to
the holding of the AGM itself.
Summary of Orders Made Against AER
Specifically, the Court ordered that AER:
- agree with Jaguar on a person to serve as an independent chair
for the upcoming AGM (the "Chair") within 7 days. The Chair is to
be approved by the Court. The Chair will have authority
to:
- appoint all personnel for the AGM, including secretary and
scrutineer(s);
- take all necessary steps to schedule and call the AGM as soon
as reasonably possible, free from interference;
- settle the entirety of Management's information circular in the
manner he or she sees fit, free from influence; and
- administer the Advance Notice Policy;
- is subject to restrictions on how it spends corporate funds,
specifically:
- AER may not spend more than $32,000 per month until the AGM is held, plus an
additional $40,000 for the conduct of
the AGM and for the cost of the independent chair;
- AER may not pay for any further legal expenses incurred by its
directors in their personal capacities, with limited
exceptions;
- AER may not to incur any expenses outside of its ordinary
course of business; and
- AER is not permitted to enter into any new agreement or
indebtedness having an aggregate value of $5,000, save as provided in the Reasons for
Judgment, without a further order of the Court;
- must file on SEDAR an extension to the Black Sea agreement and
the Black Sea termination letter (both documents previously filed
by AER on SEDAR on January 21,
2016);
- shall forthwith publish on a weekly basis its unencumbered US
and Canadian cash reserves on SEDAR until the AGM is conducted;
- shall forthwith issue a press release that corrects what the
Court found to be misleading aspects of certain prior press
releases related to these proceedings (see discussion of Appendix
"A", below); and
- shall not amend the Advance Notice Policy prior to the vote at
the AGM.
The Court also made various declarations related to its findings
of oppression and/or undue prejudice. For full details of the
Court's reasons and orders please see the copy of the Reasons for
Judgment dated February 17, 2016
filed by AER today on SEDAR.
Effect of Orders on AER
The Court's Orders have the effect of prohibiting AER from
spending its funds to defend the company against Jaguar in the
upcoming proxy battle, in particular by preventing AER from
engaging a proxy solicitation advisor, as is customary. AER is
gravely concerned that an AGM convened in accordance with the
spending and other restrictions imposed by the Court will greatly
and unjustly favor Jaguar and its plan to gain control of the
Board, and thereby access to AER's cash.
AER has previously announced that its next AGM was scheduled for
February 26, 2016. That date
must now be postponed to a later date to be determined. As
found by the Court, there is no prospect of the AGM being held on
or before February 26, 2016, due to
the steps required to call, schedule, and deliver proper notice of
it to AER's shareholders.
AER Will Pursue its Appeal Rights
AER disagrees with the findings of the Court expressed in the
Reasons for Judgment for the Second Petition. AER also
disagrees with the findings of the Court made with respect to the
previous petition brought by Jaguar (the "First
Petition").
Given the serious consequences that AER anticipates will be
suffered by AER and its shareholders if the outcomes of the First
and Second Petitions are not challenged, AER shall file an appeal
of the decision of the Court in the Second Petition, and shall also
pursue the appeal that was previously filed with respect to the
decision of the Court in the First Petition.
AER intends in the near term to seek a "stay" (or suspension) of
the Court's Orders prior to the appeals being heard and
decided.
Appendix "A"
Please see attached as Appendix "A" to this news release a chart
in compliance with the Court's Order that "AER shall forthwith
issue a press release that corrects the misleading aspects of the
impugned press releases".
Rod McKeen, Lead Director and
sole
member of the Special Committee
Forward Looking Statements: This news release contains
forward looking statements that are subject to a number of known
and unknown risks, uncertainties and other factors that may cause
actual results to differ materially from those anticipated in our
forward looking statements. Forward-looking statements in this
release include statements regarding the outcome of the legal
proceedings.
Neither the TSX Venture Exchange nor its Regulation Services
Provider (as that term is defined in the policies of the TSX
Venture Exchange) accepts responsibility for the adequacy or
accuracy of this release.
APPENDIX "A"
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Date of News
Release
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Findings by the
Court
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AER's
Response
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December 11,
2015
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"[48] The first press
release AER issued following the Reasons was on December 11, 2015
("December 11 Press Release"), the day following the issuance of my
Reasons, but its disclosure was limited. AER did not advise of the
findings I had made that the Black Sea Transaction: (a) was not
procedurally and substantively fair and reasonable; (b) was
oppressive to Jaguar; (c) was not in the best interests of AER; and
(d) was structured to avoid shareholder approval. The press release
did not advise that AER's directors had disclosable interests in
respect of the Black Sea Transaction. Instead, the press release
advised shareholders that the Black Sea Transaction could not
complete until shareholders voted on it:
[T]he Court ruled,
among other things, that AER cannot complete the acquisition of
[Black Sea] until the transaction has been approved by the
shareholders of AER at a special meeting of the shareholders. The
Court will hear further submissions concerning a recent loan made
by AER to [Black Sea]. Refer to the AER News Releases dated
November 26, 2015, and December 3, 2015 for additional
details.
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AER disagrees with
the Court's findings set out at (a) through (d). They are subject
to the pending appeal.
AER disagrees that
its directors had a disclosable interest in the Black Sea
Transaction other than Mr. Cooper who appropriately disclosed that
interest. This issue is subject to the pending
appeal.
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[49] As I noted, I
ordered AER to issue an "appropriate" press release. Although I did
not specify the exact contents, there could be no misapprehension
that an accurate summary of the findings, determinations, orders,
and direction contained in the Reasons was required in light of the
requirements of the TSX Policy and the National Policy, and
especially in light of the remarks that I made at para. 100 of the
Reasons.
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AER filed the written
Reasons for Judgment for the First Petition on SEDAR on December
23, 2015, the day after those Reasons were available.
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[50] As well, the
December 11 Press Release was misleading because it referred to,
and relied upon, the accuracy of two prior press releases that AER
had issued on November 26 and December 3, 2015. In light of the
findings in my Reasons, the respondents knew or ought to have known
that key portions of those two press releases could no longer be
held out as accurate."
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AER disagrees with
the findings of the Court that it says makes portions of those two
press releases inaccurate. Those findings are subject to the
pending appeal.
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November 26,
2015
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"[51] I will start
with AER's November 26, 2015 press release. It advised shareholders
that Jaguar's allegations against the respondents in respect of the
Black Sea Transaction, made in the First Petition and in a press
release, contained "a litany of false statements". The news release
also reported that AER and its board "have fully complied with
their fiduciary obligations to AER throughout" and "fully complied
with the applicable provisions of corporate legislation, securities
regulation, Exchange policies and appropriate corporate governance
practices concerning" the Black Sea Transaction and AER's
obligation to hold an AGM. The findings that I made in the Reasons
were to the contrary. As a result, AER's continued reliance on the
purported truth of its earlier statements in the press release
issued immediately following the Reasons, gave an inaccurate and
misleading impression of both Jaguar's conduct and the respondents'
conduct in respect of the Black Sea Transaction."
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AER's position is
that Jaguar's allegations are false and that AER and its directors
have fully complied with all relevant laws and obligations.
The Court's findings to the contrary do not change that
position. Those findings are subject to the pending
appeal.
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December 3,
2015
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"[52] AER's other
press release issued on December 3, 2015 was, itself, misleading
("December 3 Press Release"). AER reported that its AGM was
"deferred", with an extension given by the Registrar of Companies
until early 2016, "pending completion of due diligence" of the
Black Sea Transaction. AER also advised that it "has convened an
annual and special meeting of shareholders of AER" to be held "on
February 26, 2016". Those statements were not true. AER's board of
directors did not seek an extension of the AGM from the Registrar
of Companies in order to carry out due diligence. The board had
already approved the Black Sea Transaction by October 3, 2015,
which was well before it sought the extension. Further, AER had not
convened the AGM for February 26. Apart from setting the record
date (which I discuss in a later section) after the First Petition
was issued, AER did not take any of the steps necessary to proceed
with the AGM until well after Jaguar commenced this petition. By
relying on the December 3 Press Release in the manner that it did
in the December 11 Press Release, AER continued to convey to
shareholders the misleading impression that its contents were
true."
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At the time the
deferral of the AGM was granted due diligence regarding the share
ownership of Black Sea was not complete.
At the time of this
press release AER had set the date for the AGM for February 26,
2016. It had not omitted taking any steps necessary for the
meeting to proceed as scheduled.
The Court's findings
to the contrary are subject to the pending appeal.
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December 24,
2015
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"[55] On December 24,
2015, AER issued a further press release ("December 24 Press
Release"). In it, AER stated its purpose was to "provide context
for existing shareholders and potential new investors with an
overview of their business plan and actions over the past 18
months". The December 24 Press Release went on at considerable
length to explain the Black Sea Transaction in a manner that was, I
am satisfied, an attempt to justify the merits of it and the basis
on which the extension was obtained from the Registrar of
Companies. That press release was also critical of Jaguar's conduct
and motives.
[56] The respondents
are correct when they state that the December 24 Press Release
disclosed some of the findings contained in the Reasons. They were,
however, mentioned briefly, and only to explain that: (a) AER could
not complete the Black Sea Transaction without shareholder approval
at a special meeting of shareholders; (b) the Black Sea Transaction
was found not to be fair and reasonable to AER; and (c) the relief
sought by Jaguar was granted.
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[57] Otherwise, and
despite my findings in the Reasons, the December 24 Press Release
sent a clear message that the respondents had acted properly in
respect of the Black Sea Transaction, both before and after the
Reasons were issued, and that they would continue to act in a
manner to protect shareholders' best interests.
[58] I agree with
Jaguar that the December 24 Press release was misleading in view of
my findings in the Reasons. For example, it stated that:
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AER's position is
unchanged. AER disagrees with the Court's findings to the
contrary.
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(a) a special
committee appointed by AER's board to review the Black Sea
Transaction "was comprised of disinterested directors", even though
I had determined that the members of the committee (who were AER's
other two directors) had allowed themselves, prior to their
appointment to the special committee, to be influenced by a
co-director, the respondent Mr. Cooper, who was also an officer and
director of Black Sea and one of its related companies, who stood
to benefit from the Black Sea Transaction;
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AER disagrees with
this finding, as well as with the proposition that its special
committee was placed into a conflict due to hearing a presentation
by a director who had disclosed his interest in the
transaction.
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(b) Mr. Cooper "was
not involved in the assessment, consideration, or voting in
relation to the Black Sea" Transaction, even though I had
determined that he was allowed to influence the special committee
by making a full presentation to them about its merits;
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AER's position is
unchanged and it disagrees with the Court's finding.
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(c) the special
committee had retained a consultant to review the merits of the
proposed Black Sea Transaction, even though I had found that AER's
board of directors had decided to proceed with the Black Sea
Transaction by no later than October 3, 2015; and
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AER's position is
unchanged and it disagrees with the Court's finding.
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(d) the rationale for
obtaining an extension to hold the AGM in 2016 was to avoid the
costs of holding two shareholders' meetings (i.e., an annual
general meeting in November 2015 and a subsequent one to vote on
approval of the Black Sea Transaction), even though I had rejected
that rationale in the Reasons as inaccurate and despite the fact
that the terms of the Black Sea Transaction itself mandated that
shareholder approval must not be required.
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AER's position is
unchanged and it disagrees with the Court's finding.
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[59] The December 24
Press Release was also misleading because it gave the impression
that AER and its board of directors had acted properly in respect
of its due diligence obligations concerning the Black Sea
Transaction when they commissioned a technical report required by
the TSX Venture Exchange (which is called an "NI 43-101" report).
The NI 43-101 report was, however, commissioned after the
respondents had approved of the Black Sea Transaction. Further, the
contents of the NI 43-101 report established that the Black Sea
Transaction was off-side AER's business objective to acquire
advanced stage mineral projects. The NI 43-101 report disclosed
that there "are no mineral resources or mineral reserves estimated"
for the mineral property that was to be acquired, that there had
been no mineral processing or metallurgical testing done on it,
that no follow-up drilling had taken place since the 1980s, and
that a further $570,000 was required to be spent to determine if
"further exploration was warranted." None of that information was
contained or referred to in the December 24 Press
Release."
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AER's position is
unchanged and it disagrees with the Court's finding.
All of the findings
referred to above are subject to the pending appeal.
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SOURCE Alternative Earth Resources Inc.