SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D/A

(Rule 13d-101)

 

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT

TO RULE 13d-2(a)
(Amendment No. 33)*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

 

(Continued on following pages)

 

(Page 1 of 19 Pages)

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

SCHEDULE 13D

 

 

(1)	Includes (i) 6,658,116 shares of common stock (“Common Stock”) of Golden Queen Mining Co. Ltd. (the “Company” or “Golden Queen”) held directly by Mr. Thomas M. Clay, (ii) 257,500 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable options of the Company held directly by Mr. Thomas M. Clay, and (iii) 108,499,796 shares of Common Stock held by the Estate of Landon Thomas Clay (the “Estate”), for which Mr. Thomas M. Clay is the executor. Mr. Thomas M. Clay disclaims beneficial ownership of the shares of Common Stock held by the Estate.
(2)	Includes (i) 807,250 shares of Common Stock held by Arctic Coast Petroleums, Ltd. (“Arctic Coast”), for which Mr. Thomas M. Clay is a director, (ii) 7,031,755 shares of Common Stock held by the Monadnock Charitable Annuity Lead Trust dated May 31, 1996 (the “Monadnock Trust”), for which East Hill Management Company, LLC (“East Hill”) is the investment manager, (iii) 10,740,600 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the Landon T. Clay 2009 Irrevocable Trust u/a dated March 6, 2009 (the “LTC Trust”), for which Mr. Thomas M. Clay is a trustee, and (iv) 2,759,400 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the Clay Family 2009 Irrevocable Trust u/a dated April 14, 2009 (the “CF Trust” and, together with the LTC Trust, the “Trusts”), for which Mr. Thomas M. Clay is a trustee and has a residual beneficial interest. The CF Trust holds a 50% beneficial interest of the shares of Common Stock held by Arctic Coast, and Mr. Thomas M. Clay therefore disclaims beneficial ownership of 50% of the shares of Common Stock held by Arctic Coast. Mr. Thomas M. Clay is the sole manager of East Hill.
(3)	Based on 313,858,944 shares of Common Stock of the Company outstanding, calculated as follows: (i) 300,101,444 shares of Common Stock of the Company as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018, (ii) 257,500 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable options of the Company held directly by Mr. Thomas M. Clay, and (iii) an aggregate of 13,500,000 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the Trusts.

 

 

SCHEDULE 13D

 

 

(4)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(5)	Includes (i) 7,031,755 shares of Common Stock held by the Monadnock Trust, for which Mr. Brian James is sole trustee, (ii) 10,740,600 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the LTC Trust, for which Mr. Brian James is a trustee, (iii) 2,759,400 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the CF Trust, for which Mr. Brian James is a trustee, and (iv) 807,250 shares of Common Stock held by Arctic Coast, which are deemed to be beneficially owned by the CF Trust. Mr. Brian James disclaims beneficial ownership of the shares of Common Stock held by the Monadnock Trust, Arctic Coast and the Trusts.
(6)	Based on 313,601,144 shares of Common Stock of the Company outstanding, calculated as follows: (i) 300,101,444 shares of Common Stock of the Company as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018, and (ii) an aggregate of 13,500,000 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the Trusts.

 

 

SCHEDULE 13D

 

 

(7)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(8)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(9)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(10)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(11)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(12)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(13)	Includes (i) 26,855,821 shares of Common Stock of the Company and (ii) 4,500,000 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by EHT, LLC.
(14)	Based on 304,601,444 shares of Common Stock of the Company outstanding, calculated as follows: (i) 300,101,444 shares of Common Stock of the Company as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018, and (ii) an aggregate of 4,500,000 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by EHT, LLC.

 

 

SCHEDULE 13D

 

 

(15)	Includes (i) 2,983,413 shares of Common Stock of the Company held directly by Mr. Jonathan Clay, (ii) 50,000 shares of Common Stock held by 933 Milledge LLC, for which Mr. Jonathan Clay is the sole manager, (iii) 26,855,821 shares of Common Stock held by EHT, LLC, for which Mr. Jonathan Clay is the sole manager, and (iv) 4,500,000 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by EHT, LLC.
(16)	Based on 304,601,444 shares of Common Stock of the Company outstanding, calculated as follows: (1) 300,101,444 shares of Common Stock of the Company as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018, and (ii) an aggregate of 4,500,000 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by EHT.

 

 

SCHEDULE 13D

 

 

(17)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(18)	Based on 300,101,444 shares of Common Stock of the Company outstanding as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018.

 

 

SCHEDULE 13D

 

 

(19)	Consists of 10,740,600 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the LTC Trust.
(20)	Based on 310,842,044 shares of Common Stock of the Company outstanding, calculated as follows: (i) 300,101,444 shares of Common Stock of the Company as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018, and (ii) 10,740,600 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the LTC Trust.

 

 

SCHEDULE 13D

 

 

(21)	Consists of 2,759,400 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the LTC Trust.
(22)	Based on 303,668,094 shares of Common Stock of the Company outstanding, calculated as follows: (i) 300,101,444 shares of Common Stock of the Company as reported in the Company’s Form 10-Q for the quarter ended September 30, 2018, filed with the Securities and Exchange Commission on November 8, 2018, (ii) 2,759,400 shares of Common Stock that are issuable upon the exercise of outstanding, currently exercisable warrants of the Company held by the CF Trust, and (iii) 807,250 shares of Common Stock held by Arctic Coast, which are deemed to be beneficially owned by the CF Trust.

 

 

SCHEDULE 13D

 

 

This Amendment No. 33 to Schedule 13D (this “Amendment”) is being filed by the undersigned to amend and restate the disclosures contained in the Schedule 13D originally filed on June 2, 2006 by Mr. Landon T. Clay, as subsequently amended by a Schedule 13D/A filed on February 2, 2010 by Mr. Landon T. Clay and Mr. Thomas M. Clay, as amended by those certain Schedules 13D/A filed on April 16, 2010, June 16, 2010, February 10, 2011, April 12, 2011, October 14, 2011, and February 9, 2012, as amended by a Schedule 13D/A filed on April 25, 2012 by Mr. Landon T. Clay, Mr. Thomas M. Clay and the LTC Trust, as amended by those certain Schedules 13D/A filed on July 16, 2012, October 26, 2012, February 21, 2013, March 27, 2013, May 2, 2013, July 30, 2013, July 31, 2013, December 10, 2013, March 26, 2014, June 18, 2014, July 25, 2014, January 15, 2015, and August 13, 2015, as amended by a Schedule 13D/A filed on December 31, 2015 by Mr. Landon T. Clay, Mr. Thomas M. Clay, the LTC Trust and Mr. Brian James, as amended by a Schedule 13D/A filed on January 27, 2016 by Mr. Landon T. Clay, Mr. Thomas M. Clay, the LTC Trust, Mr. Brian James and the Landon T. Clay 2016-2 Annuity Trust u/a dated January 14, 2016 (the “2016-2 GRAT”), as amended by a Schedule 13D/A filed on August 4, 2016, as amended by a Schedule 13D/A filed on December 2, 2016 by Mr. Landon T. Clay, Mr. Thomas M. Clay, the LTC Trust, Mr. Brian James, the 2016-2 GRAT and Mr. Richard T. Clay, as amended by a Schedule 13D/A filed on February 3, 2017, as amended by a Schedule 13D/A filed on January 5, 2018 by Mr. Thomas M. Clay, the Estate, the LTC Trust, Mr. Brian James, and the 2016-2 GRAT, as amended by a Schedule 13D/A filed on February 8, 2018, as amended by a Schedule 13D/A filed on March 8, 2018 by Mr. Thomas M. Clay, the Estate, the LTC Trust and Mr. Brian James, as amended by a Schedule 13D/A filed on July 26, 2018 by Mr. Thomas M. Clay, the Estate and Mr. Brian James, as amended by a Schedule 13D/A filed on January 7, 2019 by the parties thereto, and as amended by a Schedule 13D/A filed on February 5, 2019 by the undersigned (as so amended, the “Schedule 13D”). The undersigned are hereinafter referred to as the “Reporting Persons.”

 

Item 1. Security and Issuer.

 

This Amendment relates to the Common Stock of Golden Queen. The principal executive office of the Company is 6411 Imperial Ave., West Vancouver, BC V7W 2J5.

 

Item 2. Identity and Background.

 

There have been no material changes to the information previously reported under Item 2 in the Schedule 13D with respect to the Reporting Persons.

 

Item 3. Source and Amount of Funds or Other Consideration.

 

There have been no material changes to the information previously reported under Item 3 in the Schedule 13D with respect to the Reporting Persons.

 

Item 4. Purpose of Transaction.

 

“Item 4. Purpose of Transaction” of the Schedule 13D is hereby amended and restated in its entirety to read as follows:

 

All of the shares of Common Stock beneficially owned by the Reporting Persons and reported in this Schedule 13D were acquired for investment purposes. As of the date hereof, the shares of Common Stock beneficially held by the Reporting Persons are being held with a purpose or effect of influencing or changing control of the Company.

 

The Reporting Persons have determined, as of January 3, 2019, that they, and/or an entity that they may form (which any such entity may include ownership by other affiliates or insiders of the Company, persons related to or affiliated with the Reporting Persons, and/or persons unrelated and unaffiliated with the Reporting Persons), intend to engage in discussions with the Company’s management, board of directors, other stockholders, and other relevant parties for the purposes of considering an acquisition transaction with respect to the Company and initiated by the Reporting Persons. On January 4, 2019, the Reporting Persons submitted a preliminary, non-binding letter (the “Proposal Letter”) to the Company’s board of directors. In the Proposal Letter, the Reporting Persons proposed to acquire all of the outstanding equity interests of Golden Queen Mining Company, LLC held indirectly by the Company in exchange for (i) the surrender of the notes and all indebtedness held by the Reporting Persons under that certain Second Amended and Restated Term Loan Agreement dated as of November 21, 2016, as amended, (ii) the surrender of all shares of Common Stock and warrants and options to acquire shares of Common Stock beneficially held by the Reporting Persons, (iii) a cash payment, and (iv) other good and valuable consideration. The description of the Proposal Letter does not purport to be complete and is qualified in its entirety by reference to the full text of the Proposal Letter, a copy of which is incorporated herein by reference. The Reporting Persons intend to engage in discussions with the Company’s board of directors and management with respect to the Proposal Letter. Following the submission of the Proposal Letter, the Reporting Persons issued a press release announcing the proposal. A copy of the press release is incorporated herein by reference.Following the discussions, on February 5, 2019, the Company and the Reporting Persons executed a term sheet for the acquisition by the Reporting Persons of all of the issued and outstanding equity interests of Golden Queen Mining Holdings Inc., which directly holds a 50% interest in Golden Queen Mining Company, LLC, held directly or indirectly by the Company (the “Term Sheet”). The Term Sheet is binding in certain limited respects

 

 

SCHEDULE 13D

 

 

but is generally non-binding. The description of the Term Sheet does not purport to be complete and is qualified in its entirety by reference to the full text of the Term Sheet, a copy of which is attached as Exhibit A to a Letter to Thomas M. Clay, authorized representative of the Reporting Persons, dated February 5, 2019, from the Company, and is incorporated herin by reference.

 

On February 7, 2019, the Company and the Reporting Persons executed an Agreement for the Purchase of Shares of Golden Queen Mining Holdings, Inc. (the “Purchase Agreement”) for the acquisition by the Reporting Persons of all of the issued and outstanding equity interests of Golden Queen Mining Holdings Inc., which directly holds a 50% interest in Golden Queen Mining Company, LLC, held directly or indirectly by the Company. The Purchase Agreement provides that, among other things, (i) the applicable Reporting Persons shall tender and exchange all principal and interest due under that certain Second Amended and Restated Term Loan Agreement, dated as of November 21, 2016, as amended, among the Company and the other parties thereto, (ii) the applicable Reporting Persons shall tender and exchange all shares of Common Stock beneficially owned by such Reporting Persons, (iii) the applicable Reporting Persons shall tender and exchange all outstanding options to acquire shares of Common Stock held by such Reporting Persons, (iv) the applicable Reporting Persons shall tender and exchange all outstanding warrants to acquire shares of Common Stock held by such Reporting Persons, (v) the applicable Reporting Persons shall deliver to the Company $4.25 million (the “Cash Payment”), (vi) the Company shall deliver to the Purchasers all issued and outstanding equity interests of Golden Queen Mining Holdings Inc, and (viii) effective prior to the execution of the Purchase Agreement, Mr. Thomas M. Clay resigned as a director and officer of the Company and all of its subsidiaries (except Golden Queen Mining Company, LLC). The Purchase Agreement also contains provisions governing possible contingent payments to GQM and customary representations, covenants and indemnities. The description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, a copy of which is filed as Exhibit 21 hereto and incorporated herein by reference. The Reporting Persons intend that the source of the Cash Payment will be available cash and cash equivalents held by the Reporting Persons or their affiliates.

 

The foregoing is subject to change at any time, without notice. Except as otherwise described above in this Item 4, the Reporting Persons currently have no plan(s) or proposal(s) that relate to, or would result, in any of the events or transactions described in Item 4(a) through (j) of Schedule 13D, although each of the Reporting Persons reserves the right to formulate such plans or proposals in the future.

 

Item 5. Interest in Securities of the Issuer.

 

There have been no material changes to the information previously reported under Item 3 in the Schedule 13D with respect to the Reporting Persons.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

“Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer” of the Schedule 13D is hereby amended and restated in its entirety to read as follows:

 

Effective as of December 31, 2014, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with the parties named therein. Pursuant to the Registration Rights Agreement, certain parties thereto can require the Company, subject to the terms and conditions of the Registration Rights Agreement, to register under the Securities Act securities of the Company beneficially owned by such certain parties as of December 31, 2014 or acquired thereafter and prior to July 1, 2015. The Registration Rights Agreement was amended and restated on June 8, 2015 (the “Amended and Restated Registration Rights Agreement”) to reflect the transactions contemplated by the Amended and Restated Term Loan Agreement, under which the Company is borrower, including by the addition of certain lenders party to the Amended and Restated Term Loan Agreement as parties holding registration rights under the Amended and Restated Registration Rights Agreement.

 

Effective as of February 7, 2019, the Reporting Persons entered into an Amended and Restated Sharing and Consent Agreement (the “Sharing Agreement”). The Sharing Agreement provides for the pro rata payment by the Reporting Persons of expenses that may arise from their participation in the group, including legal fees, Securities and Exchange Commission filing expenses, expenses that may arise in communicating with the Company or its shareholders, investment banking fees, fees and expenses of proxy solicitors, litigation expenses and indemnification expenses.  The Sharing Agreement also contains a power of attorney provision that allows Thomas M. Clay to take certain actions on behalf of the Reporting Persons and prohibits the Reporting Persons from taking certain actions, or requires consultation among the Reporting Persons, with respect to certain matters relating to the ownership and voting of the Company’s securities.  A copy of the Sharing Agreement is filed as Exhibit 6 hereto.

 

The descriptions of the Registration Rights Agreement, the Amended and Restated Registration Rights Agreement, the Term Sheet, the Sharing Agreement, and the Purchase Agreement in this Schedule 13D do not purport to be complete descriptions and are qualified in their entirety by reference to the full text of such agreements, which are incorporated herein by reference. A copy of the Sharing Agreement is filed as Exhibit 6 hereto and a copy of the Purchase agreement is filed as Exhibit 21 hereto.

 

 

SCHEDULE 13D

 

 

Item 7. Material to be Filed as Exhibits

 

Exhibit 1		Joint Filing Agreement, dated as of January 7, 2019, among the Estate of Landon Thomas Clay, Thomas M. Clay, Brian James, solely in his capacity as trustee of the Monadnock Trust and the Trusts, Lavinia D. Clay, Cassius M. C. Clay, Landon H. Clay, Richard T. Clay, Jonathan Clay, James Clay, the Monadnock Charitable Annuity Lead Trust dated May 31, 1996, the Landon T. Clay 2009 Irrevocable Trust u/a dated March 6, 2009, the Clay Family 2009 Irrevocable Trust u/a dated April 14, 2009, Arctic Coast Petroleums Ltd., EHT, LLC and 933 Milledge, LLC.*
Exhibit 2		Registration Rights Agreement, dated as of June 8, 2014 (Incorporated by reference to the Company’s Current Report on Form 8-K filed on June 12, 2014).
Exhibit 3		Amended and Restated Registration Rights Agreement, dated as of June 8, 2015 (Incorporated by reference to the Company’s Current Report on Form 8-K filed on June 9, 2015).
Exhibit 4		Letter to the Board of Directors of the Company, dated January 4, 2019.*
Exhibit 5		Press Release, dated January 7, 2019.*
Exhibit 6		Amended and Restated Sharing and Consent Agreement, dated as of February [11], 2019, among the Estate of Landon Thomas Clay, Thomas M. Clay, Brian James, solely in his capacity as trustee of the Monadnock Trust and the Trusts, Lavinia D. Clay, Cassius M. C. Clay, Landon H. Clay, Richard T. Clay, Jonathan Clay, James Clay, the Monadnock Charitable Annuity Lead Trust dated May 31, 1996, the Landon T. Clay 2009 Irrevocable Trust u/a dated March 6, 2009, the Clay Family 2009 Irrevocable Trust u/a dated April 14, 2009, Arctic Coast Petroleums Ltd., EHT, LLC and 933 Milledge, LLC.
Exhibit 7		Power of Attorney of Lavinia D. Clay.*
Exhibit 8		Power of Attorney of Cassius M. C. Clay.*
Exhibit 9		Power of Attorney of Landon H. Clay.*
Exhibit 10		Power of Attorney of Richard T. Clay.*
Exhibit 11		Power of Attorney of Jonathan Clay.*
Exhibit 12		Power of Attorney of James Clay.*
Exhibit 13		Power of Attorney of Estate of Landon Thomas Clay.*
Exhibit 14		Power of Attorney of Monadnock Charitable Annuity Lead Trust dated May 31, 1996.*
Exhibit 15		Power of Attorney of Landon T. Clay 2009 Irrevocable Trust u/a dated March 6, 2009.*
Exhibit 16		Power of Attorney of Clay Family 2009 Irrevocable Trust u/a dated April 14, 2009.*
Exhibit 17		Power of Attorney of Arctic Coast Petroleums Ltd.*
Exhibit 18		Power of Attorney of EHT, LLC.*
Exhibit 19		Power of Attorney of 933 Milledge, LLC.*
Exhibit 20		Letter to Thomas M. Clay, authorized representative of the Reporting Persons, dated February 5, 2019.**
Exhibit 21		Agreement for the Purchase of Shares of Golden Queen Mining Holdings, Inc., dated February 7, 2019, among the Estate of Landon Thomas Clay, Thomas M. Clay, Lavinia D. Clay, Cassius M. C. Clay, Landon H. Clay, Richard T. Clay, Jonathan Clay, James Clay, the Monadnock Charitable Annuity Lead Trust dated May 31, 1996, the Landon T. Clay 2009 Irrevocable Trust u/a dated March 6, 2009, the Clay Family 2009 Irrevocable Trust u/a dated April 14, 2009, Arctic Coast Petroleums Ltd., EHT, LLC and 933 Milledge, LLC.

 

* Included as an exhibit to the Schedule 13D/A filed on January 7, 2019.

** Included as an exhibit to the Schedule 13D/A filed on February 5, 2019.

 

 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

February 11, 2019	ESTATE OF LANDON THOMAS CLAY
	By:	/s/ Thomas M. Clay
	Thomas M. Clay, Executor
February 11, 2019	THOMAS M. CLAY
	By	/s/ Thomas M. Clay
	Thomas M. Clay, individually
February 11, 2019	LAVINIA D. CLAY
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from Lavinia D. Clay
February 11, 2019	CASSIUS M. C. CLAY
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from Cassius M. C. Clay
February 11, 2019	LANDON H. CLAY
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from Landon H. Clay
February 11, 2019	RICHARD T. CLAY
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from Richard T. Clay
February 11, 2019	JONATHAN CLAY
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from Jonathan Clay
February 11, 2019	JAMES CLAY
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from James Clay

 

 

February 11, 2019	MONADNOCK CHARITABLE ANNUITY LEAD TRUST DATED MAY 31, 1996
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from the Monadnock Charitable Annuity Lead Trust dated May 31, 1996
February 11, 2019	LANDON T. CLAY 2009 IRREVOCABLE TRUST U/A DATED MARCH 6, 2009
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from the Landon T. Clay 2009 Irrevocable Trust u/a dated March 6, 2009
	By	/s/ Thomas M. Clay
	Thomas M. Clay, Trustee
February 11, 2019	CLAY FAMILY 2009 IRREVOCABLE TRUST U/A DATED APRIL 14, 2009
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from the Clay Family 2009 Irrevocable Trust u/a dated April 14, 2009
	By	/s/ Thomas M. Clay
	Thomas M. Clay, Trustee
February 11, 2019	ARCTIC COAST PETROLEUMS LTD.
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from Arctic Coast Petroleums Ltd.
February 11, 2019	EHT, LLC
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from EHT, LLC
February 11, 2019	933 MILLEDGE, LLC
	By	/s/ Thomas M. Clay
	under Power of Attorney dated January 7, 2019, from 933 Milledge, LLC

 

Exhibit 6

 

AMENDED AND RESTATED SHARING AND CONSENT AGREEMENT

 

THIS AMENDED AND RESTATED SHARING AGREEMENT (the “Agreement”) is made as February 7, 2019, among the undersigned persons (the “Parties”).

 

WHEREAS, certain of the Parties are beneficial owners of common stock (“Shares”) of Golden Queen Mining Co. Ltd. (the “Company”) and are members of a Section 13(d) “group” (the “Group”) that has filed a Schedule 13D and related amendments with the Securities and Exchange Commission (“SEC”) with regard to their common interest in the Company;

 

WHEREAS, certain of the Parties are lenders to the Company;

 

WHEREAS, the Parties wish to provide for the payment and allocation of expenses among the Parties and set forth certain agreements with respect to their common interest in maximizing the value of the Company’s common stock and receiving repayment of all loans from the Company;

 

WHEREAS, the Parties also wish to grant authority to Thomas M. Clay (“TMC”) to engage in discussions with the Company’s management, Board of Directors, other shareholders, and other relevant parties and to execute and deliver agreements on behalf of the Parties for the purposes of an acquisition transaction with respect to the Company initiated by the Parties and described in that certain preliminary, non-binding letter (the “Proposal Letter”), dated January 4, 2019, delivered to the Company’s Board of Directors by TMC on behalf of the Parties;

 

WHEREAS, the Parties have received and reviewed a draft dated February 3, 2019 of a certain Share Purchase Agreement between the Company and the Parties (the “Share Purchase Agreement”);

 

WHEREAS, the members of the Group are parties to a certain Sharing Agreement effective as of January 7, 2019 (the “Existing Agreement”); and

 

WHEREAS, the parties to the Existing Agreement wish to amend and restate the Existing Agreement as set forth herein.

 

NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, the Parties hereto agree that the Existing Agreement is hereby amended and restated in its entirety as follows:

 

1. Sharing of Expenses.  Each Party shall pay his, her or its “Proportionate Share” (as defined below) of any expenses reasonably incurred by any party hereto or on behalf of the Parties in connection with a party’s participation in the activities and transactions contemplated hereby (collectively, “Expenses”), to the extent not reimbursed by the Company, including, without limitation: (i) expenses and disbursements, including, but not limited to legal expenses and disbursements, incurred in connection with Section 16 filings, Schedule 13D filings, proxy statement filings and any other filings with the SEC and Canadian authorities, legal and other expenses and disbursements incurred in connection with the Share Purchase Agreement and communications with the Company, its shareholders or other persons interested in the Company (such as printing, mailing, telephone, travel and related costs), and fees and expenses of proxy

 

 

solicitors, accountants, consultants or other third parties (“Third Party Expenses”); (ii) Indemnifiable Expenses; and (iii) Contribution Expenses (as such capitalized terms are hereinafter defined).

 

2. Certain Definitions.  For purposes hereof, the following terms shall have the following meanings:

 

(a) “Indemnifiable Expenses” shall mean any and all expenses, liabilities and losses (including attorneys’ fees and expenses, judgments, fines and amounts paid or to be paid in any settlement by a party hereto) actually incurred or suffered by a Party hereto in connection with any present or future threatened, pending or contemplated investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (collectively, “Indemnifiable Litigation”), to which any Party hereto is made a party or is threatened to be made a party by reason of any action or inaction taken or omitted in connection with any matter relating to the activities of Parties hereunder or his, her or its ownership of Shares. Notwithstanding anything to the contrary contained herein, a Party hereto shall not have any obligation to indemnify or hold harmless the other for any Indemnifiable Expense arising out of such other Party’s fraud, willful misconduct or gross negligence.

 

(b) “Proportionate Share” of each Party hereto shall mean, with respect to any Expenses, the percentage set forth next to such Party’s name on Schedule A hereto.

 

(c) “Willful misconduct” shall include, but not be limited to, (i) an intentionally untrue statement of a material fact, or (ii) an intentional omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, in each case, as such material facts are required to be disclosed under applicable state or federal securities laws.

 

3. Accounting and Payment of Expenses.  Each Party that believes that he, she or it has incurred Expenses entitled to reimbursement hereunder shall provide TMC with evidence of such Expenses. From time to time, TMC shall provide each party with an accounting of Expenses that have been incurred in connection with the activities of the Parties hereunder, which accounting shall set forth each Party’s Proportionate Share of such Expenses. Within ten days of the receipt of such accounting, each Party shall remit his, her or its Proportionate Share of Expenses as directed in the accounting. TMC shall pay or reimburse Expenses out of amounts received from the Parties on account of such Expenses.

 

4. Cooperation; Contribution.  The Parties shall jointly cooperate in the defense of any Indemnifiable Litigation. In the event that a Party’s right to indemnification as provided herein is for any reason not available or insufficient to hold such Party harmless to the extent provided herein, the Parties hereto agree to contribute to the aggregate expense, liability or loss (including legal or other expenses reasonably incurred in connection with investigating or defending the same) involved in proportion to their respective Proportionate Shares (“Contribution Expense”). Each Party hereto agrees that it would not be just and equitable if contribution were determined by any other method of allocation. Notwithstanding anything to the contrary contained herein, a Party shall not be entitled to contribution for any Contribution Expense from the other for any liability or expenses arising out of such Party’s fraud, willful misconduct or gross negligence.

 

 

5. Power of Attorney.  Each Party whose signature appears below hereby constitutes and appoints TMC as his, her or its true and lawful attorney-in-fact and agent with full power of substitution, for him, her or it and in his, her or its name, place and stead, in any and all capacities, to sign (i) any and all Section 16 reports, Schedule 13Ds, proxy statements and other filings and amendments thereto relating to securities of the Company, and to file same, with all exhibits thereto, and all documents in connection therewith, with the SEC and Canadian authorities, and (ii) the Share Purchase Agreement and all other agreements, instruments and documents related thereto or to the consummation of the transactions contemplated thereby, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he, she or it might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.

 

6. Periodic Updates.  TMC shall provide the Parties with periodic updates regarding the status of the activities of the Parties hereunder and other matters relating to the Group’s ownership of Company securities.

 

7. Pre-approval of Transactions in Company Securities.  Each Group member agrees that it will not acquire or dispose of any securities in the Company during the term of this Agreement without the prior written consent of TMC.

 

8. Voting and Delivery of Company Shares.  Each Group member agrees that in accordance with instructions from TMC from time to time, (i) it will vote its respective Shares, and (ii) will deliver all certificates evidencing its respective Shares as required under the Share Purchase Agreement.

 

9. Plans or Proposals.  Each Group member agrees to consult with TMC, and TMC agrees to gain consensus among the Group members, prior to adopting any plans or proposals that relate to or would result in any of the actions required to be set forth in parts (a) through (j) of Item 4 of Schedule 13D. By executing this Agreement, each Party acknowledges that a consensus has been reached to present the Proposal Letter and the Share Purchase Agreement to the Company. TMC is authorized to act on behalf of the Parties with respect to the Proposal Letter and the Share Purchase Agreement, including the retention of counsel, and will consult with the Parties with respect to the Proposal Letter and the Share Purchase Agreement. Each Party agrees not to adopt any other plans or proposals that relate to or would result in any of the actions required to be set forth in parts (a) through (j) of Item 4 of Schedule 13D without the prior written consent of TMC.

 

10. Termination.  No Party may withdraw from the Group or this Agreement without the prior written consent of TMC. This Agreement may be terminated upon the written consent of Parties holding a majority of the aggregate number of Shares beneficially owned by the Group. Notwithstanding any such termination, the provisions of Sections 1, 2, 3 and 4 will survive termination of this Agreement as to any Expenses incurred or claims asserted with respect to periods ending on or prior to the date of its termination. Upon a termination of this Agreement, the Parties, except as provided under this Section 10, shall have no further obligation to the other.

 

 

11. Additional Members.  TMC may on behalf of the Parties consent to the addition of new members to the Group; provided, however, that no person or entity shall become a member without executing and delivering an instrument agreeing to be bound by this Agreement, in which case Schedule A shall be revised and TMC shall promptly furnish a copy of such instrument and revised Schedule A to each Party.

 

12. No Third Party Beneficiaries; Successors and Assigns.  Except as expressly provided herein, this Agreement shall not confer any rights or remedies upon any person other than the Parties hereto and their respective successors and permitted assigns. This Agreement, shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, representatives, successors and assigns, provided that none of the Parties hereto may assign their rights under this Agreement without the prior written consent of TMC, and any attempted assignment in contravention of the foregoing shall be void.

 

13. Complete Agreement.  This Agreement contains the complete agreement among the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings or other documents by or among the Parties with respect thereto.

 

14. Governing Law; Venue.  This Agreement is a contract under the laws of the State of New York and shall for all purposes be construed in accordance with and governed by the laws of said State without reference to its conflict or choice of laws principles (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law, which shall apply to this Agreement). The Parties hereby irrevocably and unconditionally submit to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to above. Each of the Parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. EACH PARTY WAIVES HIS, HER OR ITS RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.

 

15. Severability.  It is the desire and intent of the Parties that the provisions of this Agreement be enforced to the fullest extent permissible under applicable law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, in the event that any provision of this Agreement would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it

 

 

shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

16. Headings.  Descriptive headings are for convenience only and shall not control or affect in any way the meaning or construction of any provision of this Agreement.

 

17. No Waiver.  No term or condition of this Agreement shall be deemed to have been waived, except by a statement in writing signed by the Party against whom enforcement of the waiver is sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.

 

18. Notice.  All notices, requests and demands to or upon the respective Parties to be effective shall be in writing (including by .pdf), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made (a) when delivered by hand, (b) when delivered by electronic mail, or (c) the second Business Day following the day on which the same has been delivered prepaid to a reputable national express air courier service, at the respective addresses set forth on Schedule A.

 

19. Counterparts; Facsimiles.  This Agreement may be executed in two or more counterparts, or by facsimile, each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument.

 

20. Recovery of Litigation Costs.  If any legal action or any arbitration or proceeding is brought for the enforcement of this Agreement, or because of alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the substantially prevailing party shall be entitled to recover from the other party all reasonable attorney’s fees and witness fees or other costs incurred in that action or proceeding, in addition to any relief to which it may be entitled.

 

[Remainder of Page Left Blank Intentionally; Signature Pages Follow Immediately.]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Sharing and Consent Agreement on the day and year first above written.

 

February 7, 2019	ESTATE OF LANDON THOMAS CLAY
	By:	/s/ Thomas M. Clay
	Thomas M. Clay, Executor
February 7, 2019	THOMAS M. CLAY
	By:	/s/ Thomas M. Clay
	Thomas M. Clay, individually
February 7, 2019	LAVINIA D. CLAY
	By:	/s/ Lavinia D. Clay
	Lavinia D. Clay, individually
February 7, 2019	CASSIUS M. C. CLAY
	By:	/s/ Cassius M. C. Clay
	Cassius M. C. Clay, individually
February 7, 2019	LANDON H. CLAY
	By:	/s/ Landon H. Clay
	Landon H. Clay, individually
February 7, 2019	RICHARD T. CLAY
	By:	/s/ Richard T. Clay
	Richard T. Clay, individually
February 7, 2019	JONATHAN CLAY
	By:	/s/ Jonathan Clay
	Jonathan Clay, individually
February 7, 2019	JAMES CLAY
	By:	/s/ James Clay
	James Clay, individually

 

 

February 7, 2019	MONADNOCK CHARITABLE ANNUITY LEAD TRUST DATED MAY 31, 1996
	By:	/s/ Brian James
	Brian James, Trustee
February 7, 2019	LANDON T. CLAY 2009 IRREVOCABLE TRUST U/A DATED MARCH 6, 2009
	By:	/s/ Brian James
	Brian James, Trustee
	By:	/s/ Thomas M. Clay
	Thomas M. Clay, Trustee
February 7, 2019	CLAY FAMILY 2009 IRREVOCABLE TRUST U/A DATED APRIL 14, 2009
	By:	/s/ Brian James
	Brian James, Trustee
	By:	/s/ Thomas M. Clay
	Thomas M. Clay, Trustee
February 7, 2019	ARCTIC COAST PETROLEUMS LTD.
	By:	/s/ Jonathan Clay
	Jonathan Clay, President
February 7, 2019	EHT, LLC
	By:	/s/ Jonathan Clay
	Jonathan Clay, Manager
February 7, 2019	933 MILLEDGE, LLC
	By:	/s/ Jonathan Clay
	Jonathan Clay, Manager

 

 

Schedule A

 

Party:		Address:		Proportionate Share:
Estate of Landon Thomas Clay		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		21.63	%
Thomas M. Clay		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		1.33	%
Lavinia D. Clay		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		2.52	%
Cassius M.C. Clay		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		0.29	%
Landon H. Clay		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		1.13	%
Richard T. Clay		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		0.81	%
Jonathan Clay		11 Via Vizcaya Palm Beach, FL 33480 United States of America		0.73	%
James Clay		29 Ridgecroft Road Bronxville, NY 10708 United States of America		0.02	%

 

 

Monadnock Charitable Annuity Lead Trust dated May 31, 1996		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		1.40	%
Landon T. Clay 2009 Irrevocable Trust U/A dated March 6, 2009		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		38.54	%
Clay Family 2009 Irrevocable Trust U/A dated April 14, 2009		c/o East Hill Management Company, LLC 70 Main Street, Suite 300 Peterborough, NH 03458 United States of America		9.90	%
Arctic Coast Petroleums Ltd.		#610, 400 5th Avenue S.W. Calgary, Alberta Canada		0.16	%
EHT, LLC		11 Via Vizcaya Palm Beach, FL 33480 United States of America		21.50	%
933 Milledge, LLC		11 Via Vizcaya Palm Beach, FL 33480 United States of America		0.04	%

 

Exhibit 21

 

EXECUTION COPY

 

THE PURCHASER GROUP,

 

as defined herein,

 

- and -

 

GOLDEN QUEEN MINING CO., LTD.

 

 

AGREEMENT FOR THE PURCHASE OF SHARES
OF
GOLDEN QUEEN MINING HOLDINGS, INC.

 

 

DATED FEBRUARY 7, 2019

 

 

TABLE OF CONTENTS

 

		Page
Article 1 INTERPRETATION		2
1.1	Definitions	2
1.2	Accounting Principles	10
1.3	Currency	10
1.4	Construction	10
1.5	Certain Rules of Interpretation	10
1.6	Computation of Time	11
1.7	Performance on Business Days	11
1.8	Withholding	11
1.9	Schedules	12
Article 2 PURCHASE OF US HOLDCO SHARES		12
2.1	Purchase and Sale	12
2.2	Amount of Purchase Price	12
2.3	Contingent Payment	12
2.4	Calculation of Purchase Price	13
2.5	Go-Shop Right	13
2.6	Exclusive Dealings	15
2.7	GQM Reorganization	15
Article 3 REPRESENTATIONS AND WARRANTIES		15
3.1	Representations and Warranties of GQM	15
3.2	Representations and Warranties of the Purchaser	20
3.3	Survival	20
Article 4 GQM SHAREHOLDER MEETING		20
4.1	GQM Shareholder Meeting	20
4.2	The GQM Circular:	22
Article 5 CLOSING ARRANGEMENTS		23
5.1	Closing	23
5.2	GQM’s Closing Deliveries	23
5.3	Purchaser’s Closing Deliveries	24
5.4	Closing Mechanics	24
Article 6 CONDITIONS OF CLOSING		24
6.1	Conditions Precedent	24
6.2	Condition Not Fulfilled	25
Article 7 COVENANTS		26

 

 

7.1	Cooperation	26
7.2	Confidentiality	26
7.3	Action During Interim Period	26
7.4	Consents and Approvals	28
7.5	Directors and Officers	28
7.6	Clay Group Loans	28
7.7	Preparation of Tax Returns	29
7.8	Cooperation Respecting Tax Matters	29
Article 8 TERMINATION		30
8.1	Grounds for Termination	30
8.2	Effect of Termination	31
Article 9 INDEMNITY		31
9.1	Indemnity by GQM	31
9.2	Indemnity by the Purchaser	31
9.3	Time Limits for Claim Notice	31
9.4	Canadian Withholding Tax Indemnity	31
9.5	Exclusive Remedy	32
9.6	Characterization and Satisfaction of Indemnification Payments	32
Article 10 GENERAL		32
10.1	Actions on Non-Business Days	32
10.2	Expenses	32
10.3	Public Announcements	32
10.4	Notices	33
10.5	Time of Essence	34
10.6	Further Assurances	34
10.7	Severability	35
10.8	No Third Party Beneficiary	35
10.9	Specific Performance	35
10.10	Entire Agreement	35
10.11	Amendment	35
10.12	Waiver	35
10.13	Governing Law; Venue	35
10.14	Successors and Assigns	36
10.15	Counterparts	36

 

ii