SouthGobi Announces Key Findings of Internal Investigation and Trading Resumption Plan
March 30, 2019
SouthGobi Announces Key Findings of Internal Investigation
and Trading Resumption Plan
VANCOUVER – SouthGobi Resources Ltd. (TSX: SGQ, HK: 1878) (“SouthGobi” or the
“Company”) announces that, further to its press release dated December 15, 2018, the special
committee of independent non-executive directors of the Company (the “Special Committee”) has
concluded its formal internal investigation (the “Formal Investigati on”) into the past conduct
engaged in by former senior executive officers and employees of the Company (the “Former
Management and Employees” ) which raised suspicions of serious fraud, misappropriation of
Company assets and other criminals acts by the Former Management and Employees (the
“Suspicious Transactions”). The Special Committee has delivered a final report summarizing its
key findings to the board of directors of the Company ( the “Board”), which was adopted and
approved at a meeting held on March 30, 2019. A summary of the actions taken by the Company
and the Special Committee to date with respect to the Suspicious Transactions, as well as the
material findings of the Special Committee in respect of the Suspicious Transactions that were
investigated pursuant to the Formal Investigation, is set forth below.
Actions taken by the Company and the Special Committee to date
To date, the Company and the Special Committee have completed the following actions to
address the issues and concerns raised by the Suspicious Transactions:
the Company expanded the mandate of the Special Committee to conduct a formal
investigation into the conduct of the Suspicious Transactions, the implicated Former
Management and Employees, and their impact, if any, on the busi ness and affairs of the
Company. The Formal Investigation concentrated on the following areas of focus (the
“Areas of Focus ”): (i) the arrangements of the Suspicious Transactions; (ii) the
relationships between the Former Management and Employees and certa in coal trading
and transportation companies; (iii) any unidentified questionable transactions relating to
the Former Management and Employees; and (iv) the potential impact of ( i), (ii) and (iii)
on the financial statements of the Company and its subsidiaries;
during the course of the Formal Investigation, certain incomplete accounting/operational
records of one of the Companies Under Investigation (as defined below) (“ Company A”)
were identified in Company employee computers. As a result, the Special Committee
expanded the scope of the Area of Focus of the Formal Investigation to include: (i) a fund
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flow analysis of Company A; and (ii) a price analysis of the difference between Company
A’s purchase prices from the Company and selling prices to downstream customers;
the Company filed a report with local police authorities in China in respect of certain of the
Suspicious Transactions;
the Special Committee engaged Ernst & Young (China) Advisory Limited (the “Forensic
Accountant”), as forensic investigators, to oversee the forensic investigation. The Special
Committee also engaged Blake, Cassels & Graydon LLP (“ Blakes”), as independent
Canadian legal counsel, and Zhong Lun Law Firm (“Zhong Lun”), as independent Chinese
legal counsel, to assist in the Formal Investigation;
Blakes and Zhong Lun conducted a review of the Company ’s applicable policies and
procedures from the perspectives of both Canadian and PRC law;
the Forensic Accountant submitted to the Special Committee a final investigation report
on March 26, 2019; and
as disclosed above, the Special Committee concluded the Formal Investigation and has
delivered a final report summarizing its key findings to the Board, which was adopted and
approved at a meeting held on March 30, 2019.
Material findings of the Formal Investigation
Based on the Areas of Focus, the Special Committee examined and made findings in respect of
a number of matters in connection with the Formal Investigation, including the following:
(i) allegations that Mr. Aminbuhe, the Com pany’s former Chairman and Chief Executive Officer,
controlled certain companies with which the Company had business dealings; (ii) uncollectable
receivables from certain former customers and suppliers of the Company; (iii) the impact of the
lawsuit filed by Jiayuguan Xiyuan Trading Co., Ltd. (“Xiyuan”); and (iv) allegations of misconduct
by the Former Management and Employees, including: (I) the grant of a RMB5 million loan;
(II) embezzlement of bank acceptance bills of RMB12 million; (III) endorsement of commercial
acceptance bills of RMB71 million which were not supported by genuine commercial transactions;
(IV) prepayments of RMB8.5 million for coal transportation services which were never received
by the Company; and (V) prepayment of RMB16.4 million for coal transportation services which
were never received by the Company.
Based on the information obtained from the Formal Investigation, the Special Committee has
concluded that four matters examined in connection with the Formal Investigation, having an
aggregate value of approximately RMB41 million, in volved improper conduct, fraud or
misappropriation of assets ( the “Fraudulent Transactions ”) and that one matter examined in
connection with the Formal Investigation, having an aggregate value of approximately
RMB71 million, involved an accounting reclassification error. From an accounting perspective, the
Company does not anticipate that the Fraudulent Transactions will have any impact on its financial
statements (the “Financial Statements”) in the future as the Company has already recorded the
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appropriate provisions in the Financial Statements as at December 31, 2018, 2017 and 2016 and
for the years then ended.
Based on the key findings of and information obtained from the Formal Investigation, the
Company has considered the resulting financial impact on the Financial Statements and
determined that a restatement of prior period financial information is required. The restatements
reflect the impact of the Fraudulent Transactions as well as the reclassification of certain balances
of assets in the prior years. In particular, certain prepaid contracts recognized in 2016 were
fictitious as the services were never to b e received by the Company and accordingly no assets
should have been recognized. Further, in 2016 there was embezzlement of bank acceptances.
Consequently, in these financial statements there is no impairment related to these assets to be
recorded in 2017. The net effect was an increase in the net comprehensive loss of 2016 of $4.8
million and decrease of the net comprehensive loss of $2.1 million in 2017. A summary of the
requisite adjustments on the Financial Statements for the years ended 2016 and 2017 is set forth
in the table below.
Summary of Adjustments (in
millions of USD$)
Year
ended
December
31, 2016
Year
ended
December
31, 2017
Statement of Comprehensive Income
Increase / (Decrease) of Net
Comprehensive Loss before Tax
4.8 (2.1)
Statement of Financial Position
(Decrease) of Total Assets (4.8) (7.1)
(Decrease) of Total Liabilities - (4.4)
Increase of Deficiency in Assets 4.8 2.7
A summary of the material findings of the Special Committee in respect of the Suspicious
Transactions that were investigated pursuant to the Formal Investigation is as follows:
(i) Companies allegedly controlled by the Company’s former Chairman and Chief Executive
Officer
In December 2018, the Company learned of allegations that Mr. Aminbuhe, the Company’s former
Chairman and Chief Executive Officer, controlled five different companies, four of which had
business dealings with the Company (the “Companies Under Investigation”).
While no written or definitive evidence supports the conclusion that Mr. Aminbuhe controlled the
Companies Under Investigation, information obtained from the Formal Investigation prevents the
Special Committee from dismissing this allegation entirely. Moreover, as set out in greater detail
below, numerous transactions between the Company and the Companies Under Investigation
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were noted and have given rise to uncollectable receivables, further calling into question whether
the Company’s affairs were structured by parties internal to the Company in such a way as to
advance the interests of Mr. Aminbuhe (through such companies). G iven the Forensic
Accountant’s extensive investigation into this issue as well as the potentially elusive nature of any
linkages with Mr. Aminbuhe, the Special Committee has determined that further inquiry into this
matter will not yield a more definitive conclusion.
The accounting impact of the transactions between the Company and the Companies Under
Investigation on the Company are discussed in further detail below in respe ct of uncollectable
receivables; however, the Company’s accounting records indicate that the Company has ceased
business activities with the Companies Under Investigation since May 2018. The Special
Committee believes this cessation of business activities with the Companies Under Investigation
serves as a significant protection, which ensures that the best interests of the Company remain
protected from such conflicts of interest.
(ii) Uncollectable receivables
As of June 30, 2018, the Company has determined that it had an aggregate of RMB149 million of
uncollectable receivabl es (after accounting for the impact of the restatement relating to the
RMB71 million of commercial acceptance bills described below) related to Company A, one of
the other Companies Under Investigation (“Company B”) and six other coal trading companies
(the “Six Coal Trading Companies ”), of which Company A owed an aggregate net amount of
RMB51 million and Company B owed an aggregate amount of RMB7.5 million.
Based on the information obtained from the Formal Investigation, the Special Committee did not
find conclusive evidence that the Company’s arrangements with Company A were contrary to
Company’s best interests, or that they were entered into partially or entirely with a view to
benefitting Company A and its owners; however, the Special Committee has significant concerns
regarding the fact that the net accounts receivable of a single customer (Com pany A) were
allowed to reach a net aggregate of RMB51 million (after accounting for the impact of the
restatement relating to the RMB71 million of commercial acceptance bills described below) . As
to Company B, the Special Committee has determined that prepayments made to Company B
were made for the benefit of Mr. Aminbuhe and other s (through a corporate vehicle) and has
serious suspicions that the transactions with Company B were not structured with a view to the
best interests of the Company.
From the perspective of internal controls, the Special Committee concluded that the transactions
involving Company A, Company B and the Six Coal Trading Companies did not always comply
with the Company’s internal control policies and procedures, giving rise to a need to further
strengthen the Company’s policies and adherence thereto.
From an accounting perspective, the Company has decided to provide an allowance for the
accounts receivable balances with Company A and the Six Coal Trading Companies; however,
the Company has determined that these allowances do not require any restatement of the
Financial Statements, as the write-offs have been accurately recorded in the Financial Statements
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for the years ended December 31, 2018. The uncollectable receivables owing from Company B,
however, required an overall USD$1.1 million restatement to be made in the Financial
Statements, comprised of a USD$0.7 million increase in the losses recorded on the 2016 income
statement and a USD$0.4 million increase in the losses recorded on the 2017 income statement.
(iii) Xiyuan lawsuit
On September 13, 2018, Xiyuan filed a lawsuit against IMSGE in relation to a dispute over certain
coal sales contracts. In the lawsuit, Xiyuan alleged a connection between Company A and the
Company, specifically that Company A acted as the Company’ s representative in collecting
prepayments from Xiyuan and one of the Six Coal Trading Companies, being an affiliate of
Xiyuan. Xiyuan withdrew its legal action against IMSGE on January 24, 2019 owing to a lack of
evidence.
Given the withdrawal of the lawsuit (notably for lack of evidence), the Special Commi ttee has
concluded that the allegations raised in the Xiyuan lawsuit about a connection between Company
A and the Company do not strengthen any suggestion that the Company and the Companies
Under Investigation (such as Company A) were linked during Mr. Aminbuhe’s tenure or otherwise.
The Special Committee takes the view that the allegations of a third party intending to further its
own commercial interests should not materially impact the analysis of the relationship between
Mr. Aminbuhe, the Companies Under Investigation and the Company.
(iv) Alleged other misconduct by Former Management and Employees
(I) Grant of RMB5 million loan
The Company’s accounting records indicate that, in February 2018, IMSGE advanced a loan in
the aggregate amount of RMB5 million to Xiyuan. This RMB5 million loan has not been repaid by
Xiyuan as of the date hereof.
The Special Committee has determined that there was neither a loan agreement entered into
between IMSGE and Xiyuan for this loan nor any clear business rationale supportin g the loan,
and that the loan does not appear to have been properly documented, in derogation of Company
policy.
The RMB5 million loan was written off in the Financial Statements for the third quarter of 2018.
(II) Alleged embezzlement of bank acceptance bills of RMB12 million
The Company learned of allegations that certain Former Management and Employees entered
into a fraudulent coal transportation agreement in the amount of RMB12 million with one of the
Six Coal Trading Companies (“Company C”), being a vend or of IMSGE. Specifically, i t was
alleged that , after an employee of IMSGE presented bank acceptance bill s in the aggregate
amount of RMB12 million to Company C as a form of prepayment for certain transportation
services, such employee, under the instruction of two members of the Former Management and
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Employees, took back possession of these bank acceptance bills from Company C and
discounted them for uses unrelated to the coal transportation agreement.
Based on the information obtained from the Formal Investigation, the Special Committee is of the
view that it is reasonable to conclude that the prepayment to Company C was fraudulent and
amounted to misconduct. This conclusion is strengthened by the fact that local PRC law
enforcement authorities appear to be pursuing this matter.
The Company has determined that this prepayment recorded should be considered uncollectable
from the time of occurrence and a restatement of the Financial Statements is required, comprised
of a USD$1.8 million increase in the losses recorded on the 2016 income statement.
(III) Endorsement of commercial acceptance bill s of RMB71 million which are not
supported by genuine commercial transactions
Company A is alleged to have endorsed commercial acceptance bills in the aggregate amount of
RMB71 million to IMSG E, pur portedly for the settlement of certain trade payable s owing by
Company A to IMSGE. However, these commercial acceptance bills were ultimately rejected by
the original issuer of the bills because these bills we re not supported by any underlying coal
trading transactions.
The Special Committee acknowledges that the accounting treatment of these commercial
acceptance bills was ultimately incorrect and will require a restatement of the Financial
Statements, comprised of a USD$10.6 million decrease of notes receivables, a USD$5.3 million
increase of trade and other receivables and a USD$5.6 million decrease of deferred revenue
recorded on the 2017 balance sheet, as well as a USD$0.3 million decrease of finance costs
recorded on the 2017 income statement . However, the Special Committee does not have
sufficient information to conclude whether this business arrangement was an intentional
falsification of records for nefarious purposes or a situation where a simple accounting error was
made. By virtue of this situation, the endorsement of commercial acceptance bills will be
reclassified to trade and other receivables as opposed to notes receivables.
(IV) Prepayment of RMB8.5 million for coal transportation services which were never
received by the Company
In January 2017, IMSGE made prepayments totaling RMB8.5 million to one of the Companies
Under Investigation (“Company D”) for certain coal transportation services. The Company learned
of allegations that Company D has not provided these coal transportation services to IMSGE, nor
has Company D refunded the amount of the prepayments to IMSGE . Company D is the sole
shareholder of Company A.
In December 2017, IMSGE signed tripartite agreements with the sole shareholder of one of the
Six Coal Trading Companies (“Company E”) and another third party company which provided for
an offset of the amounts owed by IMSGE to Company E and such third party company in the
aggregate amount of RMB7.7 million against the prepayment of RMB8.5 million made to
Company D. However, in July 2018, the parties were in disagreement about the arrangement and
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the counterparties to the tripartite agreements asked to be paid for the services they had provided
to IMSGE, alleging that the tripartite agreements were fraudulent.
Based on the information obtained from the Formal Investigation and advice from legal counsel
in China , the Special Committee takes the view that the tripartite agreement s are legally
enforceable and that under the agreements IMSGE is entitled to offset the aggregate amount of
RMB7.7 million against the trade payables which it owed to the counterparties and Company D
is not obligated to repay such amount to IMSGE . As a result, the Company does not intend to
settle the amounts to either of the counterparties as requested.
(V) Prepayment of RMB16.4 million for coal transportation services which were never
received by the Company
Based on the information obtained from the Formal Investigation, the Special Committee learned
that the Company made a prepayment to another company (“Company F ”) in the amount of
RMB16.4 million allegedly for transportation services.
The Forensic Accountant requested but was not able to obtain any records to suggest that
transportation services have been rendered by Company F to the Company as of the date hereof.
Based on the information obtained from the Formal Investigation, t he Special Committee has
concluded that the Company’s financial records were inaccurate related to this matter, contrary
to the best interests of the Company and to the benefit of parties other than the Company . A
restatement of the Financial Statements was required as a result of this payment, comprised of a
USD$2.4 million increase in the losses recorded on the 2016 income statement and a USD$2.5
million decrease in the losses recorded on the 2017 income statement.
Remedial Actions
Since the appointment of the new senior management team in June 2018, the Company has
taken proactive steps to address the issues which gave rise to the Suspicious Transactions. The
senior management team has been fully cooperative throughout the Formal Investigation process
and is committed to making every effort to prevent any similar issues from arising in the future.
The Special Committee, with the assistance of its professional advisors, is in the process of
assessing the potential remedial actions and preventative measures available to the Company to
address the issues which caused the trading suspension, which will include amendments to the
Company’s existing system of internal controls and risk management policies and procedures to
improve and strengthen the Company’s commitment to a culture of honesty, integrity and
accountability and compliance with the highest standards of professional and ethical conduct, and
such other actions as the Special Committee may consider necessary or appropriate to protect
the Company’s interests.
Trading Resumption Plan
Based on the key findings of and information obtained from the Formal Investigation and with the
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advice of its professional advisors, the Board has approved the principal actions , together with
the related dates of completion or anticipated completion, set forth in the table below (collectively,
the “Resumption Plan”) in order to address the issues which caused th e trading suspension, re-
comply with the Hong Kong Stock Exchange ’s listing rules and allow trading of the Company ’s
common shares to resume trading on the Hong Kong Stock Exchange: