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Court File No. CV-11-9532-OOCL
ONTARIO SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, 1985, C.c-36 AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRANGEMENT OF CRYSTALLEX INTERNATIONAL CORPORATION
AFFIDAVIT OF GERALD CANTWELL
I, Gerald Cantwell, of the City of Portage la Prairie, in the Province of Manitoba,
MAKE OATH AND SAY:
1. I have knowledge of the matters to which I hereinafter depose, unless stated to
be on information and belief, in which case I state the source of the information and
believe it to be true.
2. I make this affidavit in support of a motion to lift the stay of proceedings to allow
the Committee of Shareholders to bring a claim against Crystallex and its DIP Lender
and to vary certain orders made throughout the course of the CCAA to allow the claim
to be heard.
3. I have been a shareholder of Crystallex International Corporation (“Crystallex”)
since 2010. To date I hold 21,800 shares.
4. I have been retired since 2010. Prior to my retirement, I worked as a correctional
officer at a youth facility for forty one years.
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5. At the time I purchased my shares, Crystallex showed immense promise. It held
a grant of rights to mine the richest and largest undeveloped gold reserve in the world.1
Attached as Exhibit “A” is a press release dated November 23, 1999, where Crystallex
described its rights in the lucrative mine project.
6. After my investment in Crystallex, I made efforts to keep up to date with
information about the company.
7. From 2002 to 2013, Crystallex published various updates on its website
containing important updates for its shareholders.
8. For example, Crystallex publishes press releases dated September 17th and
30th, 2002, stating that Crystallex entered into a mine operating contract agreement (the
“MOC”) with the Corporacion Venezolana de Guayana (the “CVG”), a state-owned
Venezuelan corporation, which gave Crystallex the exclusive right to mine the Las
Cristinas gold site concessions 4, 5, 6, an 7 (the “Las Cristinas Project”). Attached as
Exhibit “B” are the September 17th and 30th press releases.
9. On February 6, 2011, Crystallex issued a press release announcing that the
CVG unilaterally terminated the MOC on the basis of, among other things, Crystallex’s
alleged lack of activity to progress the Las Cristinas Project. Attached as Exhibit “C” is
the press release from Crystallex describing the termination of the MOC.
1 http://www.crystallex.com/Projects/Projects/LasCristinas/default.html
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10. In the press release, Crystallex maintained that it was complying with all its
obligations under the MOC and that it was “considering all steps necessary to protect its
investment on behalf of all its stakeholders”.
11. On April 14, 2011, Crystallex issued a press release stating that on February 16,
2011, Crystallex commenced an arbitration (the “Arbitration”) against the Bolivarian
Republic of Venezuela (“Venezuela”) with the International Centre for Settlement of
Investment Disputes. Attached as Exhibit “D” is the April 14th press release.
12. According to the press release, in the Arbitration Crystallex sought restitution of
the MOC and compensation for interim losses. In the alternative, it sought $3.8 billion
from Venezuela for the loss in value of its investment in the Las Cristinas Project.
13. I understand that on December 22, 2011, Crystallex filed for protection under
the Company's Creditors Arrangement Act, which I understand to be insolvency
legislation in Canada. Crystallex published a press release dated December 23, 2011
providing details about the filling. The December 23rd press release is attached as
Exhibit “E”.
14. As a retail investor, I did not have an in-depth knowledge of how insolvency
proceedings under a CCAA work. I relied on Crystallex to provide me with the
necessary updates about the Arbitration and, specifically, about the shareholders'
interest in any potential Arbitration award.
15. I understand that from 2011 to present day, Crystallex published the following
press releases on its website:
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(a) January 26, 2012: Crystallex announced that it received an initial order
from the Ontario Superior Court of Justice granting CCAA protection and
Court approval of the terms of an interim bridge loan for Crystallex in the
amount of US$3.125 million. In the press release, it noted that the interim
loan would allow the Company to progress its arbitration claim.
(b) March 21, 2012: Crystallex announced that it concluded auction process
to raise debtor-in-possession ("DIP") financing from an entity managed by
Tenor Capital Management Company LLC, in accordance with the
procedures approved by Ernst & Young Inc. (the Monitor of the Company)
pursuant to the Initial order. The press release stated that other matters
pertaining to the CCAA proceeding were available on the Company's
website and on the monitor's website.
(c) April 23, 2012: Crystallex announced that it received Court approval of
the Company's debtor-in-possession financing of US $36,000,000
provided by Tenor Special Situation Fund 1, LLC ("Tenor SS" or the "DIP
Lender") which would allow the company to fund its operations, including
the Arbitration.
The press release also noted that the agreement Tenor SS and Crystallex
would give Tenor SS additional compensation which would be dependent
on the amount of the net proceeds realized from an award or settlement in
respect of the Arbitration. It noted that at the option of Tenor SS the
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compensation could be converted into up to 35% of the equity of the
company.
(d) June 27, 2012: Crystallex announced that it received additional DIP funds
to be used to fund the Arbitration claim.
(e) May 1, 2013: Crystallex announced that it reached an agreement with the
U.S. Securities and Exchange Commission in which Crystallex will
consent to an order revoking its registration.
Copies of the press releases as printed from the website are attached at Exhibit
F.
16. No other press releases were issued by Crystallex in relation to DIP funds in
2013. No press releases were issued by Crystallex from 2014 onwards.
17. The press releases described above indicate that Crystallex received DIP
financing in the amount of aggregate total of US$36 million in exchange for which Tenor
would receive additional compensation depending on the amount of the net proceeds
realized from the Arbitration, which could be converted into up to 35% of the equity of
the company.
18. It was subsequently brought to my attention by Grant Watson – a member of the
Ad-hoc Committee - that Crystallex had received additional DIP financing and in
exchange has promised Tenor large amounts of the Arbitration award. To date, I am still
unaware of the exact amount that Crystallex has borrowed and the percentage of the
Arbitration award that it has given away to Tenor.
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19. Upon speaking with Delna Contractor, an associate at Gowling WLG (Canada)
LLP, I learned that court materials relating to Crystallex's DIP financing are available on
a website maintained by the court appointed Monitor. Upon visiting the website, I
experienced difficulty navigating through to various folders to determine the important
documents and understanding the effect of some of the court orders. Additionally, much
of the material appears to be redacted with no information available on how to access
the unredacted version of the documents.
20. Had I been aware that Tenor's compensation in the Arbitration award was
increasing, I would have taken steps to express my opposition to Crystallex
management, sought disclosure of the alleged Arbitration expenses that necessitated
the additional loans and/or worked with shareholders to get organized to ensure our
interests were represented.
SWORN BEFORE ME at the City of Portage la Prairie, in the Province of Manitoba on ............... ...................., ..........
Commissioner for Taking Affidavits (or as may be)
XX
Gerald Cantwell
Court File No. CV-11-9532-OOCL
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, 1985, C.c-36 AS AMENDED AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CRYSTALLEX INTERNATIONAL CORPORATION
ONTARIO
SUPERIOR COURT OF JUSTICE COMMERCIAL LIST
PROCEEDING COMMENCED AT
TORONTO
AFFIDAVIT
GOWLING WLG (CANADA) LLP Barristers & Solicitors 1 First Canadian Place 100 King Street West, Suite 1600 Toronto ON M5X 1G5 Tel: 416-862-7525 Fax: 416-862-7661 Clifton P Prophet (#34845K) Tel: 416-862-3509 Fax: 416-863-3509 [email protected]
Nicholas Kluge (#44159T) Tel: 416-369-4610 Fax: 416-862-7661 [email protected]
Lawyers for Crystallex International Corporation File Number: T1006179
TOR_LAW\ 9257007\3
