-
GCP must pay costs to El Nino
Ventures in the amount of CDN$
431,532
- A
declaration was made that George
Kavvadias and Global Consulting
Group Ltd. (GCP) have no right to
participate in the activities of
Infinity Resources SPRL (70% owned
by ELN) beyond rights of as a
minor shareholder.
- GCP
must return all assets of
Infinity Resources to the control of
El Nino Ventures on behalf of
Infinity Resources Sprl,
including all mining permits and
site, vehicles, equipment, drill
core and data.
-
Post-award interest is payable on
the costs award in the amount of CDN$
431,532 at a rate of 5% per annum
compounded annually from March 21,
2014 until paid
April 2nd, 2014,
Vancouver, BC; El Nino
Ventures Inc. ("ELN" and the
"Company") (TSX.V: ELN; OTC
Pink: ELNOF Frankfurt: E7Q)
is pleased to announce that
the Company has now received
the Final Award from the
International Commercial
Arbitration between ELN and
Global Consulting Group Ltd.
("GCP"), a company
controlled by George
Kavvadias at the time of the
initial proceedings. The
Company was successful in
its submission for its costs
of the arbitration and was
awarded $431,532. All
submissions in opposition to
the awards by Mr. Kavvadias
and GCP were denied.
The arbitrator has
overwhelmingly found El
Nino's claims to be valid
and in making both this
final award as well as the
previously announced partial
award to El Nino, the
Arbitrator has declared the
following in favour of El
Nino:
-
There is no reason for any
significant delay. Arbitration is
over. No adjournment is
necessary for GCP's lawyer to take
instructions to apply for or to
oppose ELN's application for costs.
There is no provision under the
International Arbitration Act for
re-opening or reconsideration of an
award.
-
The partial Award was clear that Mr.
Kavvadias acted improperly in
attempting to transfer the mining
permits to Mikuba and in the manner
of appointing himself as Gerant of
Infinity Resources.
-
There was no violation of any order
that ELN produce books and records.
There was thus no basis for any
adverse inference to be drawn.
- A
declaration was made that there was
no breach of the Joint Venture
Agreement or Option Agreement
dated May 19, 2007 resulting from
the failure of ELN to pay the final
installment of US$100,000 and
100,000 shares of ELN to GCP on May
18, 2010 or by ELN's request that
Assurances be signed by GCP and
Fonaco Sprl or by ELN failure to pay
exploration and development costs in
the amount of US$296,626.70 up to
May 18, 2010, which amount was
unsubstantiated.
- A
declaration was made that
Exploration permits No. 5214 (Kasala),
5215, 5216 and 5217 are the property
of Infinity Resources SPRL. not
GCP's.
- GCP
must pay ELN damages in the amount
of US$101,850.32, ELN may set off
against the US$100,000 final
installment owing under the Joint
Venture Agreement and Option
Agreement to complete the earn-in
for El Nino's 70% Interest in the
Kasala Permits. The net damages
amount owing by GCP is therefore
US$1,850.32.
- GCP
must transfer 20% of the infinity
shares to Mr. Hassan Sabra. For the
sake of clarity, GCP must transfer
two thirds of the 30% of the shares
in Infinity that it holds, over to
Mr. Sabra*.
- A
declaration was made that George
Kavvadias and his Company; Global
Consulting Group Ltd. (GCP) has no
right to participate in the
activities of Infinity Resources
beyond rights of as a minor
shareholder.
-
Global Consulting Group Ltd. (GCP)
must return all assets of Infinity
Resources SPRL to the control of El
Nino Ventures including all mining
permits and site, vehicles,
equipment, drill core and data.
GCP must act reasonably to ensure a
smooth transition and transfer of
the Infinity assets to ELN who is
the major shareholder and operator
of the joint venture company,
Infinity Resources Sprl.
-
GCP must pay costs to El Nino
Ventures in the amount of CDN$
431,532. Post-award interest is
payable on all costs awarded
including the net amount of
CDN$1,850.32 for damages as well
as CDN$ 431,532 for arbitration
costs, at a rate of 5% per annum
compounded annually from March 21,
2014 until paid.
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, Canada.
For further information
visit the company's website
or contact investor
relations at 1 (604)
685-1870.
*-Note: 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. El
Nino is a 70% shareholder in
Infinity, Hassan Sabra and a
corporation owned by Mr.
Sabra, owns 20% of the
shares of the joint venture
company, Infinity Resources
Sprl, which owns 100% of the
Kasala Project.
About Kasala Project
One of the newest copper
discoveries in the Central
African Copperbelt, El Niño
Ventures' Kasala prospect is
located approximately 70
kilometers northwest of
Lubumbashi, Democratic
Republic of Congo's second
largest city and the center
of the country's massive
copper/cobalt mining
industry. The Central
African Copperbelt contains
over 10% of the world's
copper and 34% of the
world's cobalt. The Kasala
project permits are located
close to Minmetals'
Kinsevere Mine, which is
expected to produce 24,000
tonnes (52 million pounds)
of copper annually for the
next 20 years.
The Kasala project has an
excellent infrastructure and
is ideally situated within
20 km of the national
highway (a hard-surfaced
all-weather road) and is
also within 30 km of a rail
line linking the mining
centers of the Copperbelt. A
high-tension electrical
transmission line is located
12 km west of the projects'
boundaries. These results
confirm the presence of
significant mineralization
within the Kasala Main Zone
with the potential for
expansion based on the
results from an IP Survey
completed in early 2009.
Ownership structure of the
project is 70% ELN, 20%
Hassan Sabra, 10% other.
Copper oxide mineralization
at and near surface;
sulphide mineralization at
depth. Drilling Highlights
for Kasala Block A is as
below:
Hole MDB023: 80m @ 1.42% Cu
from 17m downhole; includes
29m @ 2.82% Cu and 5m @
4.11% Cu
Hole MDB027: 91m @ 1.16% Cu
from 9m downhole; includes
22m @ 3.28% Cu and 5m @
4.39% Cu
Hole MDBDD0011b: 91m @ 1.19%
Cu from 54m downhole;
includes 10m @ 6.7% Cu
Hole MDBDD0019: 22m @ 3.28%
Cu from 125m downhole;
includes 7m @ 7.02% Cu (sulphide)
Open to expansion by
drilling in all directions;
adjacent blocks
under‐explored
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").
About Partial Arbitration
Reward:
On January 6th, 2014 the
company announced Partial
Arbitration Reward from
International Commercial
Arbitration. In the Partial
Arbitration Reward 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. Geologist 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.
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.
The conduct of Mr. Kavvadias,
for which GCP is
responsible, was
unconscionable and
constituted equitable fraud.
|
- 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 totaled
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.
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. |