NEW
YORK, May 4, 2023 /CNW/ - Pelham Investment
Partners LP ("Pelham LP") has today filed a notice
(the "Notice") with Nickel 28 Capital Corp. (formerly
Conic Metals Corp.) (TSXV: NKL) ("Nickel 28" or the
"Company") for the nomination of five highly-experienced and
independent directors to be elected to the board of directors of
Nickel 28 (the "Board" or "Board of Directors")
at the upcoming annual general and special meeting to be held on
June 12, 2023 (the "AGM" or
the "Meeting").
As of the record date for the Meeting, being April 24, 2023, Pelham LP beneficially owned, or
controlled or directed, directly or indirectly, an aggregate of
5,972,300 common shares of Nickel 28 (the "Common
Shares"). As of the date of the Notice, Pelham LP
beneficially owned, or controlled or directed, directly or
indirectly, an aggregate of 9,947,878 Common Shares (representing
approximately 10.8% of the Company's Common Shares). To the best of
its knowledge, Pelham LP is the Company's single largest
shareholder.
Pelham LP's proposed slate of director nominees are:
Edward (Ned) Collery, Daniel Burns, Marilyn
Spink, David Whittle, and
Ross B. Levin (collectively, the
"Nominees"). The Nominees have each consented to being
nominated by Pelham LP and acting as directors of the Company, if
elected. Pelham LP has filed the Notice in compliance with
the Company's advance notice provisions contained within the
Company's articles after careful consultation with its legal
advisors, Gowling WLG (Canada) LLP
and Norton Rose Fulbright Canada LLP.
Pelham LP has acted in good faith and in compliance with all
relevant statutory regulations and in accordance with Company
articles. Given the level of share ownership by current management,
Pelham LP believes that an independent Board is necessary to ensure
that the legitimate concerns of shareholders are actioned
appropriately and shareholder interests are safeguarded.
Board Change is Urgently Needed at
Nickel 28
Pelham LP is nominating the Nominees for election at the
upcoming AGM as a result of the incumbent Board's abject failure to
constructively engage with and address the legitimate concerns of
Pelham LP regarding the incumbent Board's mismanagement of the
Company, including its track record of excessive executive
compensation (to the significant detriment of minority
shareholders), lack of adequate independent oversight and the
incumbent Board's recent track record of entrenchment in response
to Pelham LP's good-faith attempts at shareholder
engagement.
Pelham LP believes that its Nominees will strengthen the Board
and improve Nickel 28's prospects to deliver value to all
shareholders. Ned Collery,
Daniel Burns, Marilyn Spink, David
Whittle, and Ross B. Levin
will provide capital market and business execution experience as
well as improve the Company's profile by implementing true
corporate governance and leadership, safeguarding shareholder
interests from excessive compensation, and providing truly
independent oversight of management. The Nominees are positioned,
from both an industry and leadership perspective, to provide
valuable insight and help the Company achieve its significant
growth potential.
Ned Collery, the managing member
of the general partner of Pelham LP and a Nominee, commented:
"The highly unusual and rushed timing chosen by the current
Board for this year's annual general meeting smacks of (to borrow a
favorite phrase of the incumbent Board) a "scheme" that threatens
to disenfranchise Pelham LP by setting the record date prior to the
expiry of our recently completed and successful tender offer, and
by gaming the Company's advance notice requirements in a manner
that significantly accelerated the timeframe by which we were
required to submit our alternative slate of directors. Despite the
incumbent Board's machinations, we have put together an incredibly
strong team for the Company. Even ignoring the fact that the
existing Board has utterly failed in its responsibility to ensure
reasonable compensation expense and maintain its independence from
management, I feel confident that our Nominees are simply better
suited to managing the Company's affairs than the incumbent Board.
In particular, I note that the Company's press release dated
May 3, 2023 states that management of
the Company requires significant experience in "mining",
"operations", and "geology". The current Board is composed entirely
of people with backgrounds in finance and law, with no appreciable
credentials or experience in the management of active mining
operations. On the other hand, our Nominees are diverse and include
several candidates with relevant experience in mining and geology.
Given how the incumbent Board has treated non-insider shareholders
in the past, and the significant concerns we have that this
treatment is likely to continue if left unchecked, there is no
doubt in my mind that change is necessary."
The Company's recent announcement that it will not seek the
renewal of its existing equity-based compensation plan is too
little, far too late, and is no concession at all.
Management is well aware that they are not permitted to vote their
shares on the annual renewal of the Company's equity-based
compensation plan and, thus, the plan was virtually assured to be
voted down by disinterested shareholders – an outcome which, in
addition to being entirely predictable, would have been highly
embarrassing to management. The Company's efforts to spin this
"decision" as a "concession" is an act of utmost cynicism. This is
no more a gesture of goodwill than would be the promise of a
bank-robber, having been caught red-handed, not to do it again.
It should be very concerning to all shareholders that, despite a
professed "commitment to shareholder engagement", since Pelham LP's
initial February 6th offer
of a premium investment in the Company, no member of the Board or
management has ever attempted to contact Pelham LP in any
fashion. This, despite Pelham LP's repeated public requests for
engagement. The Company's unwillingness to hear hard truths from
Pelham LP is indicative of a problem at Nickel 28 – a culture that,
time and again, unjustly rewards management at the expense of
shareholders.
To be clear, management and the Board should prioritize the best
interests of the Company and its shareholders, even if it means no
longer coddling an overpaid management team. The Company's abject
governance and compensation failures, culminating in their
half-hearted and transparently cynical attempts at shareholder
engagement, leave Pelham LP with no other option but to seek change
– because shareholders deserve better. Pelham LP further
notes that, when talking about the shareholders the Company has
contacted, the Company claims that those shareholders "support
Nickel 28", but makes no mention of their support for the incumbent
Board. We look forward to a reconstitution of the Board following
the AGM scheduled for June
12th, and believe that the Board is no less able
than we are to assess the inevitability of this change. Pelham LP
believes the Board has already wasted considerable Company
resources in an effort to sustain its lucrative position. Further
squandering of Company funds in an attempt to thwart the will of
the Company's owners would be unconscionable.
As you will read below, for at least the first year of service,
neither Ned Collery nor any employee
or affiliate of Pelham LP will receive any compensation from the
Company, and any possible future compensation will be determined in
accordance with recommendations of a truly independent compensation
consultancy. Unlike management - who have disclosed that they
collectively own more than 26% of the Company - Pelham LP believes
that its approximately 10.8% ownership interest in the Company is
sufficient motivation to ensure a terrific outcome for all
shareholders and this compensation proposal is one that, in
stark contrast to management, would leave Pelham LP
truly aligned with minority shareholders.
Certain biographical information about each Nominee, including
their principal occupation, business or employment for at least the
five preceding years, is set out below.
The Highly Experienced and
Independent Nominees
Daniel Burns (age 62) –
British Columbia,
Canada
Daniel Burns is a lawyer, CPA and
the chief executive officer of NDC Solutions Inc., a software
company which develops corporate booking applications (ORX travel)
and the chief executive officer of BNW Travel Management Ltd., a
corporate travel management company and an affiliate of NDC
Solutions Inc. Mr. Burns has significant experience working in
retail banking and capital markets. He has chaired numerous
significant organizations in Canada and internationally including the World
Council of Credit Unions, Central 1 Credit Union and Credit Union
Central of Canada. He is also an
experienced corporate director in the banking, insurance, mining,
consumer packaged goods and agriculture sector, having served as a
director of Coast Capital Savings, Addenda Capital, Cooperators
Insurance Group, and the Desjardins Group Advisory Committee. He
has served as Chair of Zenabis Global Inc. (TSX) and CubicFarm
Systems Corp. (TSX). Mr. Burns has received an MBA from the
University of Toronto, a Global
executive MBA from the University of St. Gallen, a JD from the
University of British Columbia, a BA
Economics from Western University, and
is a CPA. Mr. Burns has completed the ICD.D designation (Institute
of Corporate Directors) through the Rotman Directors Education
Program as well as the International Company Directors Program
through the Australian Institute of Corporate Directors and is
Audit Committee Certified A.C.C. (Directors College).
Daniel Burns became the sole
independent director of Rubicon Minerals Corporation (later renamed
BattleNorth Gold Corp.) in August of 2016 (after the resignation of
the previous board) for the purposes of assisting with the
restructuring and refinancing of the company pursuant to
proceedings under the Canada Companies' Creditors Arrangement Act
(CCAA), which began in October 2016.
The company emerged from CCAA proceedings on December 20, 2016, after a successful
implementation of a restructuring transaction, with Mr. Burns
departing the company soon afterward following the successful
completion of his mandate. Mr. Burns had no previous involvement
with the company prior to his appointment.
Mr. Burns is "independent" of the Company within the meaning of
sections 1.4 and 1.5 of National Instrument 52-110 – Audit
Committees ("NI 52-110"). Mr. Burns does not
beneficially own, control or direct, directly or indirectly, any
securities of the Company or its subsidiaries.
Marilyn Spink (age 60) –
Ontario, Canada
Marilyn Spink is an award-winning
professional engineer, having held leadership roles of increasing
responsibility managing multi-discipline engineering design teams
to deliver complex minerals development projects in North and
South America, Africa, and Southeast Asia ranging in value from
$US500M to $9B. Ms. Spink's area of expertise is in
metallurgical and materials process engineering design and project
development, employing an integrated approach. Of particular
relevance, from 2006 until 2009, Ms. Spink managed the refinery
engineering teams for the detailed design and the entire process
plant construction support for the multi-billion dollar Ambatovy
Nickel–Cobalt project in Madagascar.
Currently, Ms. Spink is appointed as an independent director to
the board of directors of both Star Diamond Corporation and Avalon
Advanced Materials Inc., both Canadian public companies listed on
the Toronto Stock Exchange (TSX). In 2020, Ms. Spink was designated
as a certified sustainability practitioner and is a certified
corporate director having obtained the Competent Boards ESG
designation (GCB.D), and has been a member of the Institute of
Corporate Directors since 2008 and is expected to obtain her ICD.D
designation in the fall of 2023. Ms. Spink earned her Bachelor of
Applied Science in Materials & Metallurgical Engineering from
Queen's University (1992).
Ms. Spink is "independent" of the Company within the meaning of
sections 1.4 and 1.5 of NI 52-110. Ms. Spink does not beneficially
own, control or direct, directly or indirectly, any securities of
the Company or its subsidiaries.
David Whittle (age 58) –
British Columbia,
Canada
David Whittle, a Chartered
Professional Accountant with 30 years of senior executive
experience in the mining industry, has been responsible for
strategic planning initiatives, operations and all aspects of
corporate and financial management and administration. Mr. Whittle
is currently serving on the board of directors of Treasury Metals
Inc. (TSX) (non-executive Chair of the Board), Viva Gold Corp.
(TSXV), Kalo Gold Corp. (formerly Kalo Gold Holdings Corp.) (TSXV)
and Karus Gold Corp. Previously, Mr. Whittle served as both Chief
Financial Officer and Company Ethics Officer of Alexco Resource
Corp. (2007 to 2014), and Chief Financial Officer of Hillsborough
Resources Limited (2004 to 2007). Mr. Whittle has served as a
director of a number of public companies over his career, primarily
in the resource sector, and has extensive experience on audit
committees, compensation committees and special committees. Mr.
Whittle was previously on the board of Alio Gold Inc., serving as a
director and Audit Committee Chair until the sale of the company in
July of 2020. Mr. Whittle also served as a director of Mountain
Province Diamonds Inc. from 1997 to 2020, serving as Audit
Committee Chair and Lead Outside Director for much of his tenure as
a director, as well as Interim CEO from June
2017 to May 2018, leading the
company through a chief executive transition and refinancing of its
senior debt facility before resuming his role as an independent
director. Mr. Whittle holds a Bachelor of Commerce (Finance) from
the University of British Columbia.
Mr. Whittle is "independent" of the Company within the meaning
of sections 1.4 and 1.5 of NI 52-110. Mr. Whittle does not
beneficially own, control or direct, directly or indirectly, any
securities of the Company or its subsidiaries.
Ross B. Levin (age 39) –
Connecticut, United States of America
Ross Levin is the director of research for, and principal
of, Arbiter Partners Capital Management LLC, a New York based investment firm. Mr. Levin
is currently a director and chairman of the audit committee of
Stereotaxis, Inc., a NYSE-listed surgical robotics company. Mr.
Levin is also chairman of the board of directors of Constructive
Partnerships Unlimited, a non-profit organization providing
services and programs for people with developmental disabilities,
and former vice chairman of the board of the Cerebral Palsy
Associations of New York State.
Mr. Levin is a former board member of Capital Senior Living
Corporation, Mood Media Corporation, American Community Properties
Trust and Presidential Life Corporation.
Mr. Levin is a member of the New York Society of Securities
Analysts and is a CFA charter holder. Mr. Levin holds a
Bachelor of Science degree in Management with a concentration in
Finance from the A.B. Freeman School
of Business at Tulane University and
has completed the Investment Decisions and Behavioral Finance
program at the John F. Kennedy School of Government at Harvard University.
Mr. Levin is "independent" of the Company within the meaning of
sections 1.4 and 1.5 of NI 52-110. Mr. Levin does not beneficially
own, control or direct, directly or indirectly, any securities of
the Company or its subsidiaries.
Edward (Ned) Collery (age
32) – New York, United States of America
Ned Collery is the founder and President of Pelham LP, a
private investment partnership and a long-standing shareholder of
the Company that is currently its single largest disclosed
shareholder. Prior to founding Pelham LP, Mr. Collery worked as a
research analyst and partner in the investment management industry,
including as a partner at private investment firm SC Fundamental,
and an analyst at private investment firm Arbiter Partners. Mr.
Collery holds a B.A. in Economics from Vanderbilt University with a minor in Financial
Economics. Mr. Collery has over a decade of experience making
investments in the natural resource sector and mining space.
If elected, Mr. Collery has committed to not receiving any
remuneration from the Company for his role as a director or for
serving on any committee of the Board for at least his first
term as a director and any future compensation will be determined
in accordance with recommendations of a truly independent
compensation consultancy. This arrangement will align Mr. Collery
fully with the interests of shareholders. Mr. Collery
is "independent" of the Company within the meaning of section 1.4
and 1.5 of NI 52-110.
By virtue of his position with Pelham LP, Mr. Collery controls
and directs the Common Shares owned by Pelham LP as disclosed
above. Mr. Collery does not otherwise beneficially own, control or
direct, directly or indirectly, any securities of the Company or
any of its subsidiaries.
Information in Support of Public
Broadcast Solicitation
The information contained in this press release does not and is
not meant to constitute a solicitation of a proxy within the
meaning of applicable securities laws, however Pelham LP is
providing the following disclosure in reliance on section 9.2(4) of
National Instrument 51-102 – Continuous Disclosure
Obligations in respect of public broadcast solicitations.
Pelham LP intends to file a dissident information circular in due
course in connection with the upcoming AGM, in compliance with
applicable securities laws.
The information contained herein, and any solicitation made by
Pelham LP in advance of the Meeting, is or will be, as applicable,
made by Pelham LP and not be or on behalf of management of the
Company. All costs incurred for any solicitation will be borne by
Pelham LP, provided that subject to applicable law, Pelham LP may
seek reimbursement from the Company of its out-of-pocket expenses,
including proxy solicitation expenses and legal fees, incurred in
connection with a successful outcome resulting from shareholder
activism that Pelham LP, in its discretion, may pursue. Pelham LP
may engage the services of one or more agents (including Laurel
Hill Advisory Group) and authorize other persons to assist in
soliciting proxies on behalf of Pelham LP. Any such proxies may be
solicited pursuant to a dissident information circular, or by way
of public broadcast, including through press releases, speeches,
publications and by any other manner permitted under Canadian
corporate and securities laws. Any such proxies may be revoked by
instrument in writing executed by a shareholder or by his or her
attorney authorized in writing or, if the shareholder is a body
corporate, by an officer or attorney thereof duly authorized, or by
any other manner permitted by law.
No Nominee is, as at the date of this press release, nor has
been, within 10 years before the date of this press release, a
director, chief executive officer or chief financial officer of any
company (including the Company) that, (i) was subject to an order
that was issued while the Nominee was acting in the capacity as
director, chief executive officer or chief financial officer; or
(ii) was subject to an order that was issued after the proposed
director ceased to be a director, chief executive officer or chief
financial officer and which resulted from an event that occurred
while that person was acting in the capacity as director, chief
executive officer or chief financial officer and, for the purposes
hereof, the word "order" means (a) a cease trade order; (b) an
order similar to a cease trade order; or (c) an order that denied
the relevant company access to any exemption under securities
legislation.
No Nominee is, as at the date of this press release, or has been
within 10 years before the date of this press release, a director
or executive officer of any company (including the Company) that,
while that person was acting in that capacity, or within a year of
that person ceasing to act in that capacity, became bankrupt, made
a proposal under any legislation relating to bankruptcy or
insolvency or was subject to or instituted any proceedings,
arrangement or compromise with creditors or had a receiver,
receiver manager or trustee appointed to hold its assets, other
than as disclosed above in respect of Daniel Burns.
No Nominee has, within the 10 years before the date of this
press release, become bankrupt, made a proposal under any
legislation relating to bankruptcy or insolvency, or become subject
to or instituted any proceedings, arrangement or compromise with
creditors, or had a receiver, receiver-manager or trustee appointed
to hold the assets of the Nominee.
No Nominee has been subject to: (a) any penalties or sanctions
imposed by a court relating to securities legislation or by a
securities regulatory authority or has entered into a settlement
agreement with a securities regulatory authority; or (b) any other
penalties or sanctions imposed by a court or regulatory body that
would likely be considered important to a reasonable securityholder
in deciding whether to vote for the Nominee.
No Nominee, nor any of their respective associates is currently,
or at any time since the beginning of the Company's most recently
financial year has been: (a) indebted to the Company or any of its
subsidiaries; or (b) indebted to another entity that is, or at any
time since the beginning of the Company's most recently completed
financial year has been, the subject of a guarantee, support
agreement, letter of credit or other similar or arrangement
provided by the Company or any of its subsidiaries.
Neither Pelham LP nor, to its knowledge, any of the Nominees,
nor any of their respective associates or affiliates, has any
material interest, direct or indirect, in any transaction since the
commencement of Nickel 28's most recently completed financial year,
or in any proposed transaction which has materially affected or
will materially affect Nickel 28 or any of its subsidiaries.
Neither Pelham LP nor, to its knowledge, any of the Nominees, nor
any of their respective associates or affiliates, has any material
interest, direct or indirect, by way of beneficial ownership of
securities or otherwise, in any matter to be acted upon at the AGM,
other than as set out herein.
To the knowledge of Pelham LP, Nickel 28's head office is
located at 155 University Avenue, Suite 1240, Toronto, Ontario M5H 3B7 and its registered
address is located at Suite 2500, Park
Place, 666 Burrard Street, Vancouver, British Columbia, V6C 2X8. A copy
of this press release may be obtained under Nickel 28's SEDAR
profile at www.sedar.com.
Cautionary Statement Regarding
Forward-Looking Information
Certain statements contained in this press release, including
without limitation statements regarding the upcoming AGM and the
Nominees to be nominated by Pelham LP thereat contain
"forward-looking information" and are prospective in nature.
Statements containing forward-looking information are not based on
historical facts, but rather on current expectations and
projections about future events, and are therefore subject to risks
and uncertainties that could cause actual results to differ
materially from the future outcomes expressed or implied by the
statements containing forward-looking information. Often, but not
always, statements containing forward-looking information can be
identified by the use of forward-looking words such as "plans",
"expects", "intends", "anticipates", or variations of such words
and phrases or statements that certain actions, events or results
"may", "could", "should", "would", "might", or "will" be taken,
occur or be achieved. Although Pelham LP believes that the
expectations reflected in statements containing forward-looking
information herein made by it (and not, for greater certainty, any
forward-looking statements attributable to the Company) are
reasonable, such statements involve risks and uncertainties, and
undue reliance should not be placed on such statements. Material
factors or assumptions that were applied in formulating the
forward-looking information contained herein include the assumption
that the business and economic conditions affecting the Company's
operations will continue substantially in the current state,
including, without limitation, with respect to industry conditions,
general levels of economic activity, continuity and availability of
personnel, local and international laws and regulations, foreign
currency exchange rates and interest rates, inflation, taxes, that
there will be no unplanned material changes to the Company's
operations, and that the Company's public disclosure record is
accurate in all material respects and is not misleading (including
by omission). Pelham LP cautions that the foregoing list of
material factors and assumptions is not exhaustive. Many of these
assumptions are based on factors and events that are not within the
control of Pelham LP and there is no assurance that they will prove
correct. Important facts that could cause outcomes to differ
materially from those expressed or implied by such forward-looking
information include, among other things, actions taken by the
Company in connection with the AGM, the content of subsequent
public disclosures by the Company, general economic conditions,
legislative or regulatory changes and changes in capital or
securities markets. These are not necessarily all of the important
factors that could cause actual results to differ materially from
those expressed in any of Pelham LP's forward-looking information.
Other unknown and unpredictable factors could also impact outcomes.
Statements containing forward-looking information in this press
release are based on Pelham LP's beliefs and opinions at the time
the statements are made, and there should be no expectation that
such forward-looking information will be updated or supplemented as
a result of new information, estimates or opinions, future events
or results or otherwise, and Pelham LP disclaims any obligation to
do so, except as required by applicable law.
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SOURCE Pelham Investment Partners LP