ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST Court File No. CV-11-9532-OOCL 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.
-2-5. 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 17 th and 30 th, 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 17 th and 30 th 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
-3-10. 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 14 th 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 23 rd 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:
-4- (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
-5- 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.
-6-19. 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) Gerald Cantwell XX
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 clifton.prophet@gowlings.com Nicholas Kluge (#44159T) Tel: 416-369-4610 Fax: 416-862-7661 nicholas.kluge@gowlings.com Lawyers for Crystallex International Corporation File Number: T1006179 TOR_LAW\ 9257007\3