January 6th, 2014, Vancouver,
Canada. El Nino Ventures Inc. ("ELN" and
the "Company") (TSX.V: ELN; OTC Pink:
ELNOF Frankfurt: E7Q) is pleased to
announce that the Company has been
successful in winning its arbitration
proceedings against both George
Kavvadias and Global Consulting Group
Ltd. ("GCP"), a company controlled by
George Kavvadias. The arbitrator has
overwhelmingly found El Nino's claims to
be valid and in making his award to El
Nino, the Arbitrator has declared the
following in favour of El Nino:
|
-
Georges Kavvadias and
GCP must return all
assets of Infinity
Resources SPRL (Infinity
is 70% owned by El Nino
Ventures) to the control
of the El Nino which
include but is not
limited to the mining
permits and site,
vehicles, equipment,
drill core, data and all
records financial or
otherwise.
-
Georges Kavvadias and
GCP have no right to
participate in the
activities of Infinity
Resources Sprl beyond
the rights as a minority
shareholder.
-
The request by Georges
Kavvadias for the DRC
Mining Exploration
Permits
5214/5215/5216/5217 to
be transferred into
Mikuba Mining is denied.
-
The DRC Mining
Exploration Permits (Kasala);
5214/5215/5216 and 5217
are the property of
Infinity Resources Sprl.
-
GCP shall forthwith
deliver and endorse 20%
of its shares in
Infinity Resources Sprl
over to Hassan Sabra
(original holder of the
Kasala permits).
-
El Nino did not breach
either of the Joint
Venture Agreement or the
Option Agreement from a
failure to pay the final
instalments of
USD$100,000 and 100,000
shares to fully earn its
70% interest in the
Kasala claims or by not
paying exploration and
development costs in the
amount of USD$296,626.70
up to May 18, 2010 as
claimed by Mr. Kavvadias
and GCP.
-
GCP must pay El Nino
Ventures Inc. damages in
the amount of
USD$101,850.32.
-
El Nino may set off the
USD$100,000 final
instalment under the
Joint Venture Agreement
and Option Agreement.
|
Harry
Barr President and Chairman commenting
on the results of the arbitration stated
that, "Although the arbitration took
an exceedingly long time to complete,
the results justified management's
relentless efforts to bring Mr.
Kavvadias/GCP to accountability and
retain the assets on behalf of the
shareholders in its 70% owned joint
venture company Infinity Resources Sprl.
The above is a partial award and a
hearing is set for early February, 2014
to determine further costs in favour of
El Nino which include its legal costs
and other costs of the arbitration.
Management of ELN is expecting this
award to be substantial. As this was
an international commercial arbitration,
the results will support the company's
efforts in the DRC to bring closure to
the appeals by Mr. Kavvadias from being
removed as Gerant and for his fraudulent
attempt to transfer the Kasala mining
permits into his company Mikuba Mining.
To date, we have received a great deal
of interest from major and mid-size
companies who may want to joint venture
with El Nino on the Kasala project. We
will continue to advance discussions
with the interested parties with an aim
to advance the Kasala project in 2014."
El Nino would like to acknowledge our
joint venture partner, Mr. Hassan Sabra,
who has continually worked within the
framework of the Joint Venture to
advance the Kasala project and has
worked tirelessly with El Nino to secure
the assets of Infinity Resources Sprl.
In announcing his decisions, the
arbitrator went into great detail
providing analyses for the basis of his
partial reward. In part, the arbitrator
stated;
-
Georges Kavvadias and GCP
misrepresented that it was the legal
owner of the mining permits. GCP
was never the owner of the permits
and no legal ownership of the
permits ever vested in GCP.
-
Georges Kavvadias and GCP were in
substantial breach as at May 18,
2010. That Mr. Kavvadias was
threatening to transfer the Kasala
project to another investor to the
exclusion of El Nino. That he had
misused his Power of Attorney, had
not delivered 20% of the shares of
Infinity to Mr. Sabra, had
improperly accused El Nino of fraud,
had misused his control over
Infinity to pay himself monies to
which he was not entitled and failed
to deliver control of Infinity over
to El Nino. El Nino was not under
any legal obligation to comply with
its obligations under the respective
agreements when GCP was in
substantial breach of its
obligations.
-
The use of the Power of Attorney by
Mr. Kavvadias to appoint himself
Gerant of Infinity was improper.
The minutes of the meeting in which
that appointment was said to have
been made were not delivered to the
then President, Jean Luc Roy and
were not registered with the
appropriate authority in the DRC. By
using the Power of Attorney to so
appoint himself as Gerant, Mr.
Kavvadias overstepped his authority
to create a corporate joint venture
vehicle in the DRC for the operation
of the Kasala project.
- Mr.
Kavvadias also overstepped his
authority as the in-country manager
of the project to grant GCP a right
to remuneration under the May 29,
2007 Consulting Agreement. Mr.
Kavvadias had signed the contract on
behalf of both GCP and on behalf of
El Nino. El Nino was not aware of
that contract and a copy was not
produced by Mr. Kavvadias until the
very last days of the arbitration
hearing. The arbitrator stated that
there is serious doubt that the
contract between Infinity and GCP
was ever made. It was never listed
in the documents submitted by Mr.
Kavvadias nor referred to in his
written argument.
- A
fundamental misconception on the
part of Mr. Kavvadias was that he
had a contractual right under the
Joint Venture Agreement and the
Option Agreement to be paid for the
management and logistics of the
project in the DRC.
- The
Joint Venture Agreement contained a
provision for El Nino and GCP to
negotiate a separate agreement
setting out the conditions under
which GCP and El Nino would work
together. Such agreement was reached
in the 2007 Consulting Agreement
with Mr. Kavvadias. No such
agreement was reached in writing
regarding the role of GCP.
- When
the Consulting Agreement terminated
on its face after two years there
was no obligation on El Nino to
renew the agreement. The agreement
was then on a month to month basis
and terminated in May of 2010. In
giving his reasons, the arbitrator
stated that El Nino had many valid
reasons to terminate the
relationship with Mr. Kavvadias and
GCP and any role for GCP in the
ongoing operation of the project.
Mr. Kavvadias had been trying to
shop the Kasala project to other
investors to the exclusion of El
Nino. He started lawsuits which had
the effect of frustrating the
development of the project. He was
paying himself disputed monies out
of Infinity accounts. He was wholly
uncooperative with El Nino. He
accused El Nino of fraud. He
misused the Power of Attorney to
appoint himself as Gerant of
Infinity.
- The
evidence supports the conclusion
that the efforts of Mr. Kovacs, El
Nino's Sr. Geologist, to visit the
project site were frustrated by Mr.
Kavvadias. The fact that the
vehicles did not have adequate tires
for the site visit was the fault of
Mr. Kavvadias, who apparently
diverted the monies for some other
purpose.
-
The suggestion by Mr. Kavvadias that
he was entitled to be compensated as
the Gerant of Infinity because the
shareholders had elected him to that
position was unsustainable because
he had improperly used the Power of
Attorney from Jean Luc Roy to vote
the shares of El Nino. He also
voted the shares of Mr. Sabra
without authorization. Further, the
Articles of Infinity indicated that
an 80% vote of shareholders would be
required to remove Mr. Kavvadias as
the Gerant. Such provision would
effectively exclude El Nino from any
control over mining operations
notwithstanding its majority
position as a 70% shareholder and
the fact that it was funding the
exploration and development. A court
in the DRC set aside the appointment
of Mr. Kavvadias. He appealed that
decision and under the laws of the
DRC a court order is stayed pending
the conclusion of the appeal. Mr.
Kavvadias has not prosecuted the
appeal. It remains in limbo. The
stay of proceedings does not change
the fact that Mr. Kavvadias clearly
acted improperly in using the Power
of Attorney to vote himself Gerant
of Infinity.
- The
obligation to share profits with GCP
under the Joint Venture Agreement
would continue notwithstanding the
fact that GCP was in substantial
breach of the Joint Venture
Agreement and Option Agreement if El
Nino chose to affirm those
contracts. As well the arbitrator
found that El Nino is entitled to
exercise its majority control over
the operations of Infinity. The
various breaches of the Joint
Venture Agreement and Option
Agreement by GCP through Mr.
Kavvadias, egregious as they were,
do not disentitle GCP to the benefit
of those agreements except to the
extent that any monies found to be
lawfully owing by GCP to El Nino may
be deducted from the GCP share of
profits. GCP is not entitled to
rescission of the Joint Venture
Agreement or the Option Agreement or
to surrender of the mining permits.
- As
Mr. Kavvadias said himself, the
crisis between El Nino and GCP
started in September of 2008 after
El Nino decided to place the Kasala
project under care and maintenance
even though sufficient funds had
been raised to cover costs of the
2008 drilling program. Mr. Kavvadias
was concerned about irregularities
in expenditures by Jean Luc Roy and
abuse of shareholder funds. Another
concern raised by Mr. Kavvadias
related to what he called serious
questions about the El Nino
financial statements. He said that
the exploration expenditures were
inflated by El Nino. In respect
of these concerns that apparently
motivated the subsequent conduct of
Mr. Kavvadias, he clearly exceeded
his remit. As a minority joint
venture partner through GCP it did
not fall to Mr. Kavvadias to
second-guess the financial
strategies of El Nino, the in-house
management of corporate expenditures
or the financial statements
published by El Nino. The claims
by Mr. Kavvadias that El Nino
recorded some CDN$2.0 million on its
books that was not expended on the
Kasala project were clearly
misconceived. Many payments made
directly by El Nino to assayers and
suppliers would not show up on the
Infinity books.
-
The lawsuits brought by Mr.
Kavvadias in the DRC on the basis
that El Nino acted fraudulently in
the expenditure of monies raised in
public markets and in public filings
of the accounts of El Nino were
baseless.
- Mr.
Lines, El Nino's Sr. Geo. and
Project Manager for Kasala quoted
Mr. Kavvadias as saying "the war
will now just begin", that he will
have "court cases raining on them",
that he will "start a campaign in
the courts, with government and in
the press" and that El Nino will not
be able to operate in the DRC when
he starts his campaign. Even though
Mr. Kavvadias denied using those
words or believed that the email was
prepared by Mr. Lines, the predicted
events did come to be realized. The
threats set out in the Lines email
were consistent with the conduct of
Mr. Kavvadias. He set about to make
it impossible for El Nino to
function in the DRC. Mr. Kavvadias
was attempting to move the mining
permits into Mikuba Mining (a
company controlled by Mr. Kavvadias)
so that he could have exclusive
control over the permits and exclude
El Nino from the Kasala project.
There can be no doubt that Mr.
Kavvadias embarked upon a
scorched-earth policy to cut El Nino
out of the Kasala project
largely because he considered El
Nino to be in breach of obligations
under the Joint Venture Agreement
and the Option Agreement to fund the
exploration program. In at least one
press release prepared by Mr.
Kavvadias he announced that the El
Nino assets in the DRC would be
transferred to GCP.
-
The various invoices tendered by Mr.
Kavvadias in August 2009 for such
matters as storage rent and mapping
and travel going back to the year
2007 were not valid. There was no
record to support any agreement by
El Nino to pay those amounts.
- In
the face of the many instances of
unlawful conduct by Mr. Kavvadias,
El Nino required that Mr. Kavvadias
and Mr. Sabra sign a release and
acknowledgement of the entitlement
of El Nino to the Kasala properties
before payment of the final
USD$100,000 and 100,000 shares owing
under the Option Agreement. As at
May 18, 2010, Mr. Kavvadias was in
breach of the Joint Venture
Agreement and the Option Agreement
on a number of levels. He had
been trying to cut El Nino out of
the Kasala properties by moving the
mining permits into a company that
he owned. He had accused El Nino of
fraud. He was demanding payments to
GCP that were not owed. He was not
providing adequate accounting
information to El Nino. He was
belligerent to virtually everyone at
El Nino. He had taken over complete
control of Infinity even though El
Nino was the majority shareholder.
He did not give Mr. Hassan Sabra his
shares in Infinity or give Mr. Sabra
any meaningful opportunity to vote
those shares. He instructed lawyers
to write demand letters to El Nino
in the name of Infinity. Mr.
Kavvadias was trying to take over
the Kasala properties for himself.
Such gross demonstrations of bad
faith justified El Nino in demanding
that Mr. Kavvadias sign off upon the
final payment under the Option
Agreement. There was no foundation
for GCP to issue the first Notice of
Default dated May 19, 2010.
- In
the second Notice of Default dated
May 21, 2010, GCP claimed that El
Nino was in breach of the Joint
Venture Agreement by reason of its
failure to fund the development of
the Kasala project. While the Joint
Venture Agreement and the Option
Agreement provided that El Nino
would fund the exploration and
development of the Kasala project,
it was not a breach of either
agreement for El Nino to place the
project on care and maintenance when
the economic downturn occurred in
2008. There were no requirements as
to timing or amount of funding.
There was no basis upon which Mr.
Kavvadias or GCP were permitted to
question the internal housekeeping
of El Nino or the manner in which it
dealt with Jean Luc Roy. Mr.
Kavvadias was not entitled to insist
upon any particular level of
funding. The root of much of the
problems that arose after September
2008 was the misapprehension by Mr.
Kavvadias that he was entitled to
question the expenses of Jean Luc
Roy, the expenditures of El Nino,
the amount of funding raised by El
Nino in public markets or the amount
that El Nino spent on the Kasala
project. Mr. Kavvadias and GCP
were not entitled to question the
affairs of El Nino and there is no
basis upon which the second Notice
of Default can be upheld.
- El
Nino claimed that GCP/Mr. Kavvadias
were liable for damages for fraud,
misrepresentation or breach of
contract. In the analysis of the
arbitrator, GCP owed trust-like
obligations to El Nino in respect of
the handling of the assets of
Infinity which assets included the
mining permits and monies paid over
by El Nino to fund the Kasala
project. GCP is liable for breach
of trust-like duties by charging El
Nino from amounts that were not
owed, by Mr. Kavvadias paying
himself out of Infinity accounts and
by Mr. Kavvadias attempting to move
the mining permits out of the
control of El Niño and into the name
of Mikuba Mining.
The conduct of Mr. Kavvadias,
for which GCP is
responsible, was
unconscionable
and constituted equitable
fraud. |
GCP was
also responsible in law both as manager
of Infinity and under the Joint Venture
Agreement and the Option Agreement to
account for monies received by Infinity.
GCP was obliged to prove that monies
paid by El Nino were not improperly
diverted. GCP attempted to prove that
all monies were properly spent by
tendering extensive accounting records
at the evidentiary hearings. Many of
these documents should have been
provided to El Nino years earlier. It
was not possible to verify from these
confusing accounts that monies paid by
El Nino were properly spent on the
Kasala project. Where a party subject to
trust-like obligations is guilty of
unconscionable conduct the party to whom
those duties are owed is entitled to
equitable compensation.
The
mutual release signed by Mr. Kavvadias
on his own behalf and on behalf of GCP
dated October 23, 2009, was effective to
settle all claims by GCP and Mr.
Kavvadias to remuneration based on the
oral agreement to pay USD$22,500 per
month. Under the Mutual Release GCP and
Mr. Kavvadias discharged and released El
Nino from any and all claims for
remuneration as set out in the British
Columbia lawsuit launched by Mr.
Kavvadias. It was accordingly
improper for Mr. Kavvadias to launch a
second proceeding in the DRC that
included the same amounts.
- Mr.
Kavvadias took the view that the
oral agreement with Mr. Barr for the
balance to be paid when El Nino was
in funds was enforceable. Aside from
the question of whether or not Mr.
Barr actually made the oral
representation, the written release
cannot be varied by a collateral
oral agreement. As a matter of law
the sum paid to Mr. Kavvadias in
settlement of the British Columbia
litigation was a full and final
settlement of all claims. The
alleged contract dated May 29, 2007
between GCP and El Nino that was
produced on the last day of
evidentiary hearings did not
constitute any legal basis for any
further claim by Mr. Kavvadias for
remuneration. It was a document of
dubious authenticity and in any
event was a contract created by Mr.
Kavvadias and signed by him for both
parties.
- From
the accounting documents provided by
GCP, it would appear that subsequent
to the Mutual Release signed on
October 23, 2009, Mr. Kavvadias
sought to apply various sums to
accounts that were not authorized
including USD$5,289.96 for ex pat
schooling, USD$1,293 for ex pat
holiday travel, USD$7500 for ex pat
housing, USD$10,617.36 for medical
costs, USD$37,200 for office and
warehouse rental, USD$10,450 for
mapping and USD$22,000 GCP services
in excess of the USD$15,000 per
month that was agreed. In addition,
of the USD$7,800 forwarded in a six
month period for vehicle repair and
maintenance, only about USD$300 was
shown to have actually been spent
for that purpose. El Nino could not
ascertain where the other USD$7,500
was spent and Georges Kavvadias's
accounting documents do not assist.
The total monies not shown on the
accounting records to have been
spent on authorized purposes
totalled USD$101,852.32. Damages in
this amount are allowed El Nino as
equitable compensation.
-
There is continuing dispute
regarding whether or not El Nino has
been deprived of the core samples
and other assets of Infinity
including motor vehicles. GCP
takes the position that all assets
of Infinity including the core
samples will be made available to El
Nino upon a ruling of this
arbitration that such assets,
including the mining permits, are
the property of Infinity. At this
juncture Mr. Kavvadias must be taken
at his word. In the event that
there is a subsequent complaint that
Mr. Kavvadias or GCP has converted
the assets of Infinity, whether in
the form of vehicles and equipment,
the drill core or the mining permits
then it is open to El Nino to bring
a new claim for conversion. The
ruling in this arbitration is that
the Joint Venture Agreement and the
Option Agreement are not terminated
and that El Nino is entitled to
exercise its 70% control over the
operation of the Kasala project. GCP
will act unlawfully if it continues
to assert control over the assets of
Infinity or blocks access to those
assets.
-
George Kavvadias and GCP Group are
not entitled to a declaration that
Infinity holds the mining permits as
bare trustee for GCP or to an order
that the permits be transferred to
GCP. Georges Kavvadias was a mere
finder and is entitled only to the
finder's fee as set out in the Joint
Venture Agreement and the Option
Agreement. The mining permits were
never the property of GCP. GCP only
served as the middleman to negotiate
the transfer of the mining permits
from Fonaco SPRL to Infinity
Resources SPRL. The consideration
has been paid to Mr. Sabra under the
Contract between Mr. Sabra and GCP
dated May 18, 2007 that gave rise to
the Assignment Contract dated June
20, 2007 under which the mining
permits were assigned to Infinity
and which was attached as Schedule A
to the Joint Venture Agreement. The
mining permits are vested in
Infinity. El Nino as majority
shareholder of Infinity is
responsible to ensure that 20% of
the shares of Infinity are endorsed
over to Mr. Sabra. Mr. Kavvadias
and GCP Group do not now and never
have had any right to hold the
mining permits.
-
Mr. Kavvadias and GCP must vacate
the field and return all assets to
the control of El Nino including the
mining permits and site, vehicles,
equipment, drill core and data.
GCP must act reasonably to ensure a
smooth transition and transfer of
property to El Nino or risk losing
its share of Net Smelter Return and
net profits proportionate to its
interest in Infinity as granted
under the Joint Venture Agreement.
Management believes that having the
Kasala project back under the company's
control will contribute further value to
our shareholders and complement the
company's existing portfolio of assets
which include our interests in the
Murray Brook project and the BOJV in the
Bathurst Mining Camp, New Brunswick. For
further information visit the company's
website or contact investor relations at
1 (604) 685-1870.
About El Nino Ventures Inc.
El Niño Ventures Inc. is an
international exploration company,
focused on exploring for zinc, copper,
lead, and silver in New Brunswick,
Canada and copper/cobalt in the
Democratic Republic of Congo ("DRC").
On Behalf of the Board of Directors
"Harry Barr"
Harry Barr Chairman & CEO El Nino Ventures Inc.
Further Information: Tel: +1 604 685
1870 Fax: +1 604 685 8045 Email: info@elninoventures.com or visit www.elninoventures.com 650-555 West 12th Avenue, City Square, West Tower, Vancouver, B.C.,
Canada, V5Z 3X7
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.
Cautionary Note Regarding Forward Looking Statements. Note: This
release contains forward-looking statements that involve risks and
uncertainties. These statements may differ materially from actual
future events or results and are based on current expectations or
beliefs. For this purpose, statements of historical fact may be
deemed to be forward-looking statements. In addition,
forward-looking statements include statements in which the Company
uses words such as "continue", "efforts", "expect", "believe",
"anticipate", "confident", "intend", "strategy", "plan", "will",
"estimate", "project", "goal", "target", "prospects", "optimistic"
or similar expressions. These statements by their nature involve
risks and uncertainties, and actual results may differ materially
depending on a variety of important factors, including, among
others, the Company's ability and continuation of efforts to timely
and completely make available adequate current public information,
additional or different regulatory and legal requirements and
restrictions that may be imposed, and other factors as may be
discussed in the documents filed by the Company on SEDAR (www.sedar.com),
including the most recent reports that identify important risk
factors that could cause actual results to differ from those
contained in the forward-looking statements. The Company does not
undertake any obligation to review or confirm analysts' expectations
or estimates or to release publicly any revisions to any
forward-looking statements to reflect events or circumstances after
the date hereof or to reflect the occurrence of unanticipated
events. Investors should not place undue reliance on forward-looking
statements. |