Dear Mr. Ashby,
Thank you for your email of March 25, 2025, in which you requested a voluntary interview with Mr. Marcus Delacroix in connection with Calderwood & Harkness LLP's internal investigation on behalf of Torchlight Mining Corp. I write to confirm that Whitmore & Sharpe LLP represents Mr. Delacroix in connection with this matter and all related government inquiries. I would ask that all future communications regarding Mr. Delacroix be directed exclusively to me at Whitmore & Sharpe LLP, 1401 K Street NW, Suite 700, Washington, DC 20005.
We are aware that Calderwood & Harkness is conducting an internal investigation concerning potential violations of the Foreign Corrupt Practices Act related to Torchlight's West African operations, specifically the operations of Torchlight Ganara Holdings Ltd. and Torchlight Ganara Mining S.A. in the Republic of Ganara. We are also aware of the parallel government investigations, including the SEC's formal order of investigation (File No. HO-14892) and the inquiry being conducted by the DOJ Criminal Division, Fraud Section.
After careful consideration and thorough consultation with Mr. Delacroix, we respectfully decline the request for a voluntary interview at this time. This declination applies to all formats proposed in your March 25 correspondence, including the videoconference format you suggested as an alternative.
As you are no doubt aware, Mr. Delacroix is a subject of active government investigations by both the DOJ Criminal Division, Fraud Section (FCPA Unit) and the SEC Division of Enforcement. In light of the ongoing criminal investigation and the serious potential criminal exposure Mr. Delacroix faces, it would be imprudent for him to participate in a voluntary interview conducted by counsel for his former employer. We note that any statements Mr. Delacroix might provide during such an interview would be protected, if at all, by Torchlight's attorney-client privilege — not Mr. Delacroix's. Torchlight could elect to waive that privilege at any time, including by disclosing the content of Mr. Delacroix's interview statements to the DOJ or SEC as part of any cooperation agreement, voluntary self-disclosure, or otherwise. This reality materially affects the calculus for our client.
In connection with our declination, Mr. Delacroix expressly invokes his rights under the Fifth Amendment to the United States Constitution to decline to provide testimony or statements that could be used against him in a criminal proceeding. While we recognize that the Fifth Amendment applies most directly in the context of compelled testimony, the same prudential concerns that animate the privilege counsel strongly against voluntary participation in an interview where the applicable legal protections belong to the company rather than to the individual witness. Mr. Delacroix's declination should not be construed as an admission of any wrongdoing whatsoever, nor as a waiver of any rights or defenses available to him.
We note your reference in the March 25 email to the Upjohn warnings framework and your indication that corporate Miranda warnings would be administered at the outset of any interview. With respect, the Upjohn framework itself underscores the very risk that compels our declination: Calderwood & Harkness represents Torchlight Mining Corp., not Mr. Delacroix; the attorney-client privilege belongs to Torchlight; and Torchlight may choose — at its sole discretion — to disclose Mr. Delacroix's statements to government authorities. This structural reality creates an inherent and irreconcilable tension with Mr. Delacroix's individual interests that renders voluntary participation inadvisable under the circumstances.
For additional context, Mr. Delacroix resigned from Torchlight Mining Corp. effective November 15, 2024, and is no longer an employee, officer, or director of Torchlight or any of its subsidiaries or affiliates. He currently resides in Lyon, France, and is a dual French-Canadian citizen. As a former employee with no ongoing obligation to Torchlight to participate in voluntary interviews, Mr. Delacroix is under no duty to submit to questioning by the company's counsel.
Mr. Delacroix expressly reserves all rights, claims, privileges, and defenses available to him under applicable law, including but not limited to his rights under the Fifth Amendment to the United States Constitution, any applicable contractual protections (including any indemnification or advancement provisions contained in his former employment arrangements with Torchlight), and any rights available to him under applicable Canadian and French law. Nothing in this communication should be deemed a waiver of any such rights, claims, privileges, or defenses.
While we decline the interview request, I remain willing to discuss procedural matters with you and to receive any written questions or specific document requests, which Whitmore & Sharpe will evaluate on behalf of Mr. Delacroix. Any such requests should be directed to me in writing. We reserve the right to decline any such requests in our discretion.
I would appreciate your confirmation of receipt of this communication at your earliest convenience. Please do not hesitate to contact me should you wish to discuss any procedural matters.
Respectfully,
Helen Whitmore Partner Whitmore & Sharpe LLP 1401 K Street NW, Suite 700 Washington, DC 20005 Tel: (202) 555-4100 Fax: (202) 555-4101 Email: hwhitmore@whitmoresharpe.com
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