The operating entities of Philippines integrated resort Okada Manila have filed a series of counterclaims against US-based SPAC firm 26 Capital Acquisition Corp, seeking to terminate a previously planned merger agreement that would have seen the company listed on the NASDAQ.
The counterclaims, lodged with the Delaware Court of Chancery, are in response to a lawsuit filed by 26 Capital and its founder, Jason Ader, in early February which alleged the Okada Manila entities had breached their obligations under the merger agreement to consummate the merger promptly. The lawsuit also called on the court to order the consummation to take place.
However, in a lengthy 103-page response, the so-called UEC Parties – comprising Tiger Resort Asia Ltd (TRA), Tiger Resort, Leisure and Entertainment, Inc (TRLEI), UE Resorts International Inc and Project Tiger Merger Sub Inc – call for the agreement to be terminated, accusing Ader of fraud, of breaching US securities laws and of breaching the terms of the merger agreement.
“The UEC Parties accordingly seek to remedy these breaches through declaratory relief that will permit the UEC Parties to part ways with this fundamentally untrustworthy and dishonest SPAC promoter,” the response states.
Among the UEC Parties’ multiple counterclaims is an allegation that Capital 26 and Ader have embarked on a “concerted and increasingly erratic campaign … to pursue closing at all costs in pursuit of a windfall.”
Describing the planned merger as a “complicated deal” from the outset given the challenges of listing a Philippines casino in the United States, the UEC Parties allege that Ader made misleading public statements aimed at easing investor concerns and without receiving permission from the UEC Parties to do so. In-particular, they allege that Ader failed to disclose to his investors of “material developments in the Philippines” after the former chairman of UEC, Kazuo Okada, forcibly took control of Okada Manila for a three-month period in mid-2022.
With the Okada-led occupation delaying completion of the merger, the UEC Parties also allege that Ader flew to Japan late last year to meet with UEC directors and convince them to proceed with the merger, but that ahead of this meeting he was provided with privileged information from a “disloyal director” of UEC, named as Toji Takeuchi, which he “gladly used to inform his negotiations with [UEC].
“This was not mere negligence by Ader,” the claims read. “As a former director and audit committee member at Las Vegas Sands, one of the world’s largest gaming companies, Ader was well aware of how wildly inappropriate it was to procure and exploit privileged and confidential information of his business counterparty in an effort to gain advantage in a negotiation. The UEC Parties’ investigation into Ader’s conduct in this respect is continuing.”
Among multiple allegations that Ader misled them in an effort to complete the merger is a claim by the UEC Parties that Ader had falsely informed UEC directors that their US auditors were close to completing necessary audit work when in fact they were seeking additional information about Okada Manila’s finances.
“These and other false statements, including explicit threats of personal liability, convinced the Parent Company’s decision-makers to agree to a one-year extension of the termination rights in the Merger Agreement,” the UEC Parties claim.
They also allege that, upon returning to the United States, Ader gained access to the UEC Parties’ non-public financial information and went about preparing their 1H22 financial statements, without their knowledge or authorization, to provide to the US auditors.
“All of this conduct breached three clear contractual obligations – confidentiality, no public statements without written preapproval, and no violation of law, such as US securities laws,” the claims continue.
“The conduct at issue also involved outright deception in Ader’s negotiations with the Parent and his use of information from the Disloyal Director, all of which was intended to enrich himself. The UEC Parties accordingly seek declaratory, monetary, and other relief.”
The UEC Parties are requesting the court declare that Capital 26 materially breached the merger agreement by making unapproved public statements and by the unapproved disclosure of non-public confidential information, and that it violated securities laws by making false and misleading public statements.
As such, they are also requesting the merger agreement be terminated “as a result of the foregoing material breaches and fraudulent misconduct” and that they be awarded damages for all costs, expenses, fees and any other losses emanating from the merger agreement.