UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(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. )
Snow Lake Resources Ltd.
(Name of Issuer)
Common Shares, no par value per share
(Title of Class of Securities)
83336J208
(CUSIP Number)
Christopher Gerteisen
Suite 602, 566 St Kilda Road
Melbourne Victoria 3004 Australia
+61 3 9537 1238
with copy to:
Andrew Reilly
Rimon Law
Level 10, 20 Martin Place
Sydney, NSW 2000 Australia
andrew.reilly@rimonlaw.com
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
October 23, 2022
(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: ☐
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, as amended (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act.
CUSIP No. 83336J208
| (1) |
Names of reporting persons:
Nova Minerals Limited |
| (2) |
Check the appropriate box if a member of a group (a) ☒ (b) ☐ |
| (3) |
SEC use only
|
| (4) |
Source of funds
OO |
| (5) |
Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
☐ |
| (6) |
Citizenship or place of organization
Australia |
|
Number of shares beneficially owned by each reporting person with |
(7) |
Sole voting power
0 |
| (8) |
Shared voting power
6,600,000 | |
| (9) |
Sole dispositive power
0 | |
| (10) |
Shared dispositive power
6,600,000 |
| (11) |
Aggregate amount beneficially owned by each reporting person
6,600,000 |
| (12) |
Check if the aggregate amount in row (11) excludes certain shares
☐ |
| (13) |
Percent of class represented by amount in row (11)
36.8% |
| (14) |
Type of reporting person
OO |
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The Reporting Person (as defined in Item 2 herein) previously filed a statement on Schedule 13G on May 26, 2022 and an amendment thereto on May 27, 2022 (such Schedule 13G as amended, the “Schedule 13G”) with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 13d−1(d) promulgated under the Exchange Act to report the Reporting Person’s beneficial ownership of Common Shares (as defined in Item 1 herein) of the Issuer (as defined in Item 1 herein).
On October 23, 2022, the Reporting Person entered into a Support and Voting Agreement (the “Support and Voting Agreement”) with the Requisitioning Shareholders (as defined in Item 4 herein). The Support and Voting Agreement is attached hereto as Exhibit 99.2 and incorporated herein by reference. As a result of entering into the Support and Voting Agreement, the Reporting Person and the Requisitioning Shareholders may be deemed to be a “group” pursuant to Rule 13d−5(b)(1) promulgated under the Exchange Act. As a result, the Reporting Person is filing this statement on Schedule 13D (this “Statement”).
The security interests reported in this Statement do not include security interests owned by the Requisitioning Shareholders. The Requisitioning Shareholders filed a statement on Schedule 13D on July 20, 2022 with the SEC to report their beneficial ownership of the Common Shares of the Issuer. It is the Reporting Person’s understanding that the Requisitioning Shareholders are filing a separate statement amending their Schedule 13D to report entering into the Support and Voting Agreement. This Statement only reports information on the Reporting Person identified in Item 1 of this Statement and, except as otherwise described in this Statement, does not report any information on the Requisitioning Shareholders.
Item 1. Security and Issuer.
This Statement relates to the Common Shares, no par value per share (the “Common Shares”), of Snow Lake Resources, Ltd., a Canadian corporation incorporated in the province of Manitoba (the “Issuer”). The principal executive office of the Issuer is located at 242 Hargrave Street, #1700, Winnipeg, Manitoba R3C 0V1 Canada.
Item 2. Identity and Background.
This Statement is being filed on behalf of Nova Minerals Limited, an Australian corporation limited by shares (the “Reporting Person”). The principal business address of the Reporting Person is Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia. The Reporting Person is an Australian corporation limited by shares. The Reporting Person is principally engaged in the business of exploration for and evaluation of mineral deposits.
The name, citizenship, business address, and present principal occupation or employment of each executive officer and member of the board of directors of the Reporting Person are set forth on Appendix A and are incorporated herein by reference. During the last five years, neither the Reporting Person nor, to the best of the Reporting Person’s knowledge, any person listed on Appendix A has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding the Reporting Person or person is or was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Christopher Gerteisen, in his capacity as Chief Executive Officer of the Reporting Person, was reported in the Schedule 13G as sharing beneficial ownership of the Common Shares held by the Reporting Person, but disclaimed beneficial ownership thereof except to the extent of his pecuniary interest, if any. The Reporting Person acting through its executive officers and directors, not Mr. Gerteisen individually, has voting power and investment power with respect to the Common Shares held by the Reporting Person. As such, Mr. Gerteisen is not a reporting person in this Statement nor, except as otherwise described in this Statement, a beneficial owner of Common Shares for purposes of Regulation 13D-G promulgated under the Exchange Act.
Item 3. Source and Amount of Funds or Other Consideration.
The Reporting Person incorporated and was the parent company of the Issuer. The Reporting Company originally acquired its Common Shares prior to the registration of the Common Shares of the Issuer under Section 12 of the Exchange Act. Such acquisition was pursuant to a Share Sale Agreement dated March 8, 2019 and an Amending Agreement thereto dated April 1, 2029 with the Issuer by which the Issuer acquired Thompson Bros (Lithium) Pty Ltd, formerly Manitoba Minerals Pty Ltd., a wholly owned subsidiary of the Reporting Person as part of a group restructuring.
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Item 4. Purpose of Transaction.
As the former parent company and largest shareholder of the Issuer, and being subject to a lock-up agreement described in Item 6 of this Statement, the Reporting Person actively monitors its investment in the Issuer, including with respect to potential dilution, performance of management, and the trading prices of the Common Shares. In so doing, the Issuer became aware of the public events described below between May 29, 2022 and September 27, 2022.
On May 29, 2022, Louie Simens, an Executive Director of the Reporting Person, resigned as Chairman of the board of directors of the Issuer.
On June 8, 2022, registered shareholders of the Issuer consisting of Deerhunter Investments Pty Ltd, an Australian corporation, Kushkush Investments Ply Ltd, an Australian corporation, M + T K PTY LTD, an Australian corporation, Delaware IR LLC, a Delaware limited liability company, Benjamin Abraham Fogelgarn, a natural person who is a citizen of Australia, Nikola Najdoski, a natural person who is a citizen of Australia, Yukor Mipoz Pty Ltd, an Australian corporation, and Ozzi Pty Ltd, an Australian corporation (together, the “Requisitioning Shareholders”) provided to the Issuer a shareholder meeting requisition notice (the “Requisition”) dated June 8, 2022 requesting that the directors of the Issuer call a meeting of the shareholders of the Issuer for the purpose of (a) removing all of the directors of the Issuer; (b) fixing the number of directors at six for the ensuing year; and (c) electing six nominee directors of the Requisitioning Shareholders (such summaries of (a), (b), and (c) together, the “Proposals”).
On June 29, 2022, the Issuer called a special meeting of shareholders to be held in conjunction with its annual meeting of shareholders on or about December 15, 2022 to consider the Proposals, among other business, raised by the Requisition.
The Requisition and the Issuer’s calling of a meeting of shareholders to be held on or about December 15, 2022 was disclosed by the Issuer in a report on Form 6-K submitted June 30, 2022 with the SEC.
On July 18, 2022, the Requisitioning Shareholders provided Notice of a Special Meeting of Shareholders (the “Notice”) to be held August 10, 2022. On July 20, 2022, the Requisitioning Shareholders filed their statement on Schedule 13D with the SEC.
On July 20, 2022, the Issuer announced that no special meeting of shareholders on August 10, 2022 would take place. Also on July 20, 2022, the Issuer filed an application with the Court of Queen’s Bench (Manitoba) (the “Court”) for a declaration that the Notice was null and void. In connection with such application, the Chief Executive Officer of the Issuer submitted an affidavit affirming that he did “not anticipate any major or unusual changes to [the Issuer’s] business, such as acquisitions, transactions, or financings outside the ordinary course of business, between [then] and December 15, 2022” (emphasis added).
The Notice by the Requisitioning Shareholders and the filing by the Issuer with the Court was disclosed by the Issuer in a report on Form 6-K submitted on July 21, 2022 with the SEC.
The Issuer disclosed in a report on Form 6-K submitted August 8, 2022 that the Court had invalidated the special meeting to be held August 10, 2022 called by the Requisitioning Shareholders and validated the meeting to be held December 15, 2022 called by the Issuer.
On September 26, 2022, contrary to its Chief Executive Officer’s affirmation to the Court described above that the Issuer did not anticipate any financing, the Issuer filed a registration statement on Form F-1 (the “Registration Statement”) with the SEC to offer and sell 10,000,000 newly issued Common Shares.
Based upon the events described above, on September 27, 2022, the Reporting Person, as a non-party, successfully sought standing as an Intervenor in the Requisitioning Shareholders’ pending motion to have the Court enjoin the share issuance proposed by the Issuer by means of the Registration Statement. The Reporting Person joined the Requisitioning Shareholders in arguing that the Court issue an interlocutory injunction prohibiting the Issuer from carrying out any share issuances out of the ordinary course of business, including the issuance proposed by means of the Registration Statement, until the annual shareholder meeting to be held December 15, 2022. The Court ordered an interim injunction prohibiting the Issuer from carrying out the share issuance pending the Court’s decision on the motion.
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On September 29, 2022, the Court issued an order enjoining the Issuer from issuing any securities prior to October 27, 2022, the record date for the determination of the shareholders entitled to vote at the Company’s annual shareholder meeting to be held December 15, 2022.
On October 23, 2022, the Reporting Person entered into the Support and Voting Agreement with the Requisitioning Shareholders. Pursuant to the Support and Voting Agreement, the Reporting Person has agreed to coordinate its actions with the Requisitioning Shareholders with respect to their Common Shares and may be deemed to have formed a “group” pursuant to Rule 13d−5(b)(1) promulgated under the Exchange Act.
Subject to applicable law and regulations, and depending upon certain factors, including without limitation, the Support and Voting Agreement, the lock-up agreement described in Item 6 of this Statement, general market and investment conditions, the financial performance and strategic direction of the Issuer, and the trading prices of Common Shares that would make the purchase or sale of Common Shares desirable, the Reporting Person may, among other things, increase or decrease its position in the Issuer through the purchase or sale of Common Shares on the open market or in private transactions or otherwise, on such terms and at such times as the Reporting Person deems advisable.
Other than as described in this Statement, neither the Reporting Person nor, to the knowledge of the Reporting Person, any individuals listed in Appendix A attached hereto, currently has any plans or proposals that relate to, or would result in, any of the matters listed in Items 4(a) through (j) of Schedule 13D, although the Reporting Person may, at any time and from time to time, review or reconsider its position, change its purpose and/or formulate plans or proposals with respect thereto. As a result of these activities, the Reporting Person may suggest or take a position with respect to potential changes in the management, operations or capital structure of the Issuer as a means of enhancing shareholder value. Such suggestions or positions may include one or more plans or proposals that relate to or would result in any of the actions described in Items 4(a) through (j) of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
The Reporting Person holds 6,600,000 Common Shares of the Issuer. Based upon a total of 17,924,758 Common Shares outstanding as of September 23, 2022 as reported in the Registration Statement filed by the Issuer on September 26, 2022 with the SEC, the Reporting Person’s Common Shares represent 36.8% of the outstanding Common Shares of the Issuer.
In their statement on Schedule 13D filed on July 20, 2022 with the SEC, the Requisitioning Shareholders reported beneficially owning an aggregate of 971,791 Common Shares which, as of as of such September 23, 2022 date, represents 5.4% of the outstanding Common Shares of the Issuer.
As a result of the Support and Voting Agreement among the Reporting Person and the Requisitioning Shareholders and the deemed formation of a group thereby, such group collectively may be deemed to hold voting power with respect to an aggregate of 7,571,791 Common Shares, which, as of such September 23, 2022 date, represents 42.2% of the outstanding Common Shares of the Issuer. The Reporting Person disclaims beneficial ownership of Common Shares held by the Requisitioning Shareholders.
In accordance with the Support and Voting Agreement, the Reporting Person has agreed to (i) vote its Common Shares in favor of, and provide a proxy to the Requisitioning Shareholders in furtherance of, the Proposals, and (ii) not directly or indirectly transfer its Common Shares prior to a meeting of shareholders voting on the Proposals. Accordingly, the Reporting Person may be deemed to share voting power and dispositive power of all of its Common Shares with the Requisitioning Shareholders.
In addition, certain of the persons listed on Appendix A may be deemed to be the beneficially owner of Common Shares of the Issuer as set forth in the table immediately below.
| Name | Number of Shares | |||
| Christopher Gerteisen | 91,803 | |||
| Louie Simens | 226,249 | * | ||
| Craig Bentley | 5,000 | |||
| Avi Geller | 65,741 | |||
| * | Consists of 1,200 restricted Common Shares, warrants for the purchase of 600 Common Shares exercisable within 60 days, and options for the purchase of 224,449 Common Shares exercisable within 60 days. Of such securities, options for the purchase of 84,449 Common Shares are held by Mr. Simens individually. The options have a weighted average exercise price of US$7.50 per share and expire on November 21, 2026. The remaining such securities are held by Benjamin Discretionary Trust. Mr. Simens is one of several beneficiaries of the Benjamin Discretionary Trust. He does not have voting or investment power over the securities held by it. His spouse is the sole director of the trust. |
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Neither the Reporting Person nor, to the Reporting Person’s knowledge, any of the persons listed on Appendix A has effected any transaction in Common Shares during the past sixty (60) days.
To the knowledge of the Reporting Person, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds of the sale of, the securities that are the subject of this Statement.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
In connection with the initial public offering of the Issuer, the Reporting Person agreed to lock up its holdings of Common Shares until May 17, 2022. However, in connection with the resale of 3,000,000 Common Shares by the Reporting Person pursuant to a Registration Statement on Form F-1 and a prospectus dated April 7, 2022, the Reporting Person agreed to amend such original lock up to extend the period of lock up until March 21, 2023. The terms of the lock-up agreement provide that, without the prior written consent of the representative of the underwriters in the April 7, 2022 offering and subject to certain exceptions, the Reporting Person will not directly or indirectly:
| ● | offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any of its Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares; |
| ● | enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of its Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, whether any such transaction is to be settled by delivery of Common Shares or such other securities, in cash or otherwise; |
| ● | make any demand for or exercise any right with respect to the registration of any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares; or |
| ● | publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares. |
On October 23, 2022, the Reporting Person and the Requisitioning Shareholders entered into the Support and Voting Agreement pursuant to which the Reporting Person agreed, among other things, to (i) vote its Common Shares in favor of, and provide a proxy to the Requisitioning Shareholders in furtherance of, the Proposals, (ii) not directly or indirectly transfer its Common Shares prior to a meeting of shareholders voting on the Proposals, and (iii) indemnify the Requisitioning Shareholders for 88.1% of any damages, costs and legal expenses that arise after the date of the Support and Voting Agreement. The Support and Voting Agreement shall terminate upon the earliest to occur of the written agreement of the Reporting Person and Requisitioning Shareholders, the effective time of the Proposals having been adopted or rejected by the shareholders of the Issuer at any meeting of shareholders, the withdrawal of the Requisition, or December 31, 2022.
The foregoing descriptions of the lock-up agreement, as amended, and the Support and Voting Agreement do not purport to be complete and are qualified in their entirety by reference to the Form of Lock-Up Agreement filed as Exhibit 99.1 to this Statement and the Support and Voting Agreement filed as Exhibit 99.2 to this Statement.
Except as described above, the Reporting Person does not have any contract, arrangement, understanding or relationship with any person with respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits.
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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.
| Nova Minerals Limited | ||
| October 25, 2022 | By: | /s/ Christopher Gerteisen |
| Name: | Christopher Gerteisen | |
| Title: | Chief Executive Officer | |
| October 25, 2022 | By: | /s/ Craig Bentley |
| Name: | Craig Bentley | |
| Title: | Director of Finance and Compliance |
Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001)
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APPENDIX A
EXECUTIVE OFFICERS AND DIRECTORS
Set forth below is a list of each executive officer and director of Nova Minerals Limited setting forth the citizenship, business address and present principal occupation or employment of each person.
| Name and Business Address | Present Principal Occupation | |
| Anna Ladd-Kruger, a citizen of Canada Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Non-Executive Director of Nova Minerals Limited | |
| Christopher Gerteisen, a citizen of Australia and the United States Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Chief Executive Officer and Executive Director of Nova Minerals Limited | |
| Louie Simens, a citizen of Australia Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Executive Director of Nova Minerals Limited | |
| Craig Bentley, a citizen of New Zealand Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Executive Director of Finance and Compliance of Nova Minerals Limited | |
| Rodrigo Capel Pasqua, a citizen of Australia Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Non-Executive Director of Nova Minerals Limited | |
| Avi Geller, a citizen of the United States Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Non-Executive Director of Nova Minerals Limited; Chief Investment Officer of Leonite Capital LLC | |
| Ian Pamensky, a citizen of Australia Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Company Secretary of Nova Minerals Limited | |
| Michael Melamend, a citizen of Australia Suite 602, 566 St Kilda Road, Melbourne Victoria 3004 Australia | Chief Financial Officer of Nova Minerals Limited |
A-1
Exhibit 99.2
Support and Voting Agreement
This agreement (the “Agreement”) is made and entered into as of October 23, 2022, by and among each of the parties listed on Exhibit A hereto (each, an “Requisitioning Shareholder” and collectively, the “Requisitioning Shareholders” and Nova Minerals Limited, an Australian corporation (the “Investor”). The Investor and each of the Requisitioning Shareholders are each herein referred to as a “party” and collectively, the “parties.”)
Whereas, the Investor beneficially owns the 6,600,000 Common Shares (as defined herein) (the “Subject Shares”) of Snow Lake Resources Ltd., a Manitoba corporation (the “Company”);
Whereas, the Requisitioning Shareholders have requisitioned a meeting of the common shareholders of the Company (the “Requisition”) to:
| (i) | remove all of the directors of the Company, including but not limited to, Philip Gross, Allan David Engel and Hadassah Slater, along with any other directors appointed following the date hereof; |
| (ii) | fix the number of directors at six for the ensuing year; and |
| (iii) | elect, Dale Schultz, Nachum Labkowski, Brian Imrie, Peretz Schapiro, Kathleen Skerrett and Shlomo Kievman to the board of directors of the Company to hold office until the next annual meeting of Shareholders |
(collectively, the “Proposals”);
Whereas, the Requisitioning Shareholders have reached an agreement with the Investor with respect to certain matters as provided in this Agreement;
Whereas, the 2022 annual and special meeting of Shareholders of the Company (the “2022 Meeting”) is scheduled to be held on December 15, 2022, unless otherwise accelerated;
Now, Therefore, in consideration of the premises and mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Investor and the Requisitioning Shareholders hereby agree as follows:
Section 1. Definitions and Interpretive Provisions.
| (i) | As used in this Agreement |
| a. | the term “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in the province of Manitoba or the state of Victoria, Australia are authorized or obligated to be closed by applicable law; | |
| b. | the term “Common Shares” means common shares in the capital of the Company; | |
| c. | the terms “Effective Time” means the effective time of the Proposals having been adopted or rejected by the Shareholders at any meeting of Shareholders called to vote upon the Proposals (including the 2022 Meeting); | |
| d. | the terms “person” or “persons” shall mean any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind or nature; and | |
| e. | the term “Shareholders” means holders of Common Shares. |
| (ii) | In this Agreement: |
| a. | the division of this Agreement into Sections and the insertion of headings are for convenient reference only and do not affect the construction or interpretation of this Agreement; | |
| b. | any reference to gender includes all genders and words importing the singular number include the plural and vice versa; |
| c. | if the date on which any action is required to be taken by a party to this Agreement is not a Business Day in the place where the action is required to be taken, such action shall be required to be taken on the next succeeding day which is a Business Day in such place; | |
| d. | the words “including”, “includes” and “include” mean “including (or includes or include) without limitation”; | |
| e. | the term “Agreement” and any reference in this Agreement to this Agreement or any other agreement or document includes, and is a reference to, this Agreement or such other agreement or document as it may have been, or may from time to time be, amended, restated, replaced, supplemented or novated and includes all schedules to it; and | |
| f. | any reference to a particular statute refers to such statute and all rules and regulations made under it, as it or they may have been or may from time to time be amended, consolidated, replaced or re-enacted. |
Section 2. Covenants of the Investor.
The Investor covenants and agrees that during the period from the date of this Agreement until the earlier of (i) the Effective Time; and (ii) the date on which this Agreement is terminated in accordance with its terms, unless otherwise required or expressly permitted by this Agreement:
| (i) | Agreement to Vote in Favour. At any meeting of security holders of the Company called to vote upon the Proposals (including the 2022 Meeting) or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent in lieu of a meeting) with respect to the Proposals is sought, the Investor shall cause its Subject Shares to be counted as present (in person or by proxy) for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Shares: (i) in favour of the approval of the Proposals and (ii) in favour of any other matter necessary for the consummation of the Proposals or any other transaction contemplated by the Proposals. |
| (ii) | Agreement to Vote Against. At any meeting of security holders of the Company (including the 2022 Meeting) or at any adjournment or postponement thereof or in any other circumstance upon which a vote, consent or other approval of all or some of the security holders of the Company is sought (including by written consent in lieu of a meeting), the Investor shall cause its Subject Shares to be counted as present (in person or by proxy) for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Shares against: (i) any proposals from the Company that contradict the Proposals and (ii) any action, proposal, transaction or agreement that could reasonably be expected to (A) result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Investor under this Agreement or (B) impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Proposals. |
| (iii) | Restriction on Transfer. The Investor agrees not to directly or indirectly: (i) sell, transfer, assign, gift-over, grant a participation interest in, option, pledge, hypothecate, grant a security interest in or otherwise convey or encumber (each, a “Transfer”), or enter into any agreement, option or other arrangement with respect to the Transfer of, any of its Subject Shares to any Person or (ii) grant any proxies or power of attorney, deposit any of its Subject Shares into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of its Subject Shares. |
| (iv) | Additional Common Shares. The Investor: (i) agrees promptly to notify the Requisitioning Shareholders of any new Common Shares acquired by the Investor after the execution of this Agreement and (ii) acknowledges that any such new Common Shares will be subject to the terms of this Agreement as though owned by the Investor on the date of this Agreement. |
| (v) | Delivery of Proxy. The Investor agrees that it will, on or before the fifth Business Day prior to the 2022 Meeting: (i) with respect to any Subject Shares that are registered in the name of the Investor, the Investor shall deliver or cause to be delivered, in accordance with the instructions set out in the Requisitioning Shareholders circular and with a copy to the Requisitioning Shareholders concurrently with such delivery, a duly executed proxy or proxies directing the holder of such proxy or proxies to vote in favour of the approval of the Proposals and (ii) with respect to any Subject Shares that are beneficially owned by the Investor but not registered in the name of the Investor, the Investor shall deliver or cause to be delivered voting instructions to the intermediary through which the Investor holds its beneficial interest in the Investor’s Subject Shares, with a copy to the Requisitioning Shareholders concurrently, instructing that the Investor’s Subject Shares be voted in favour of the approval of the Proposals. Such proxy or proxies shall name those individuals as may be designated by the Requisitioning Shareholders in the Requisitioning Shareholders circular and such proxy or proxies or voting instructions shall not be revoked, withdrawn or modified without the prior written consent of the Requisitioning Shareholders. |
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| (vi) | Other Covenants. The Investor hereby: |
| a. | consents to: (A) details of, or a summary of, this Agreement being set out in any news release, information circular and court documents or other public disclosure produced by the Requisitioning Shareholders in connection with the Proposals and (B) this Agreement being made publicly available, including by filing on EDGAR; and |
| b. | acknowledges and agrees that a summary of the negotiations leading to the execution and delivery of this Agreement may appear in the Requisitioning Shareholders circular and in any other public disclosure document required by any applicable laws and further agrees that it will, as promptly as practicable, notify the Requisitioning Shareholders of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure documents if and to the extent that the Investor becomes aware that any such information shall have become false or misleading in any material respect. |
Section 3. Consent of each Requisitioning Shareholder
Each Requisitioning Shareholder consents to: (A) details of, or a summary of, this Agreement being set out in any announcement that the Investor may file with the Australian Securities Exchange and court documents or other public disclosure produced by the Investor in connection with this Agreement and (B) this Agreement being made publicly available, including by filing on Schedule 13D with the Securities and Exchange Commission via EDGAR.
Section 4. Representations and Warranties of the Investor.
The Investor represents and warrants to the Requisitioning Shareholders as follows as at the date of this Agreement and acknowledges that the Requisitioning Shareholders are relying upon such representations and warranties in connection with the matters contemplated by this Agreement:
| (i) | Organization and Authority and Capacity. (i) the Investor is a corporation incorporated and existing under the laws of its jurisdiction of incorporation; (ii) the execution and delivery of this Agreement by the Investor and the consummation by it of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action and no other corporate proceedings on the part of the Investor are necessary to authorize this Agreement or the transactions contemplated by this Agreement; and (iii) the Investor has the requisite corporate power and authority to enter into and perform its obligations under this Agreement. |
| (ii) | Execution and Binding Obligation. This Agreement has been duly executed and delivered by the Investor and constitutes a legal, valid and binding agreement of the Investor enforceable against it in accordance with its terms subject only to any limitation on bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and the discretion that a court may exercise in the granting of equitable remedies, such as specific performance and injunction. |
| (iii) | Non-Contravention. The execution and delivery of this Agreement by the Investor, the performance of its obligations under this Agreement and the consummation of the transactions contemplated by this Agreement do not and will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) contravene, conflict with, or result in the violation of: (i) the articles, by-laws or other constating documents of the Investor (as applicable); (ii) any other agreement or instrument to which the Investor is a party or by which the Investor or any of the Investor’s property or assets is bound; and (iii) any applicable laws. |
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| (iv) | Ownership of Subject Shares. The Investor is the legal and beneficial owner of, or the beneficial owner exercising control or direction over, all of the Subject Shares, free and clear of any liens. The Subject Shares are the only securities of the Company owned, directly or indirectly, or over which control or direction is exercised by the Investor. The Investor has sole dispositive power and the sole power to agree to the matters set forth in this Agreement with respect to the Subject Shares. None of the Subject Shares is subject to any agreement, arrangement or restriction with respect to the voting thereof, except as contemplated by this Agreement. The Investor has no agreement or option or right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase or acquisition or transfer to the Investor of additional securities of the Company. No Person has any agreement or option, or any right or privilege (whether by law, pre-emptive or contractual), capable of becoming an agreement or option for the purchase, acquisition or transfer from the Investor of any of the Subject Shares. |
| (v) | Litigation. There is no claim, action, lawsuit, arbitration, mediation or other proceeding in progress, pending or ongoing, or, to the knowledge of the Investor, threatened against or affecting the Investor that would reasonably be expected to have an adverse impact on the validity of this Agreement. |
Section 5. Notice.
Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; or (ii) one (1) Business Day after deposit with a nationally recognized overnight delivery service and concurrently sent by e-mail, in each case properly addressed to the party to receive the same. The addresses and e-mail addresses for such communications shall be:
To the Investor:
Nova Minerals Limited
Suite 602, 566 St Kilda Road
Melbourne, Victoria, 3004
Australia
Attention: Craig Bentley, Director of Finance & Compliance
E-mail:
To the Requisitioning Shareholders: As set forth in the respective addresses listed in Exhibit A hereto with a copy to (which shall not constitute notice):
Garfinkle Biderman LLP
1 Adelaide Street East, Suite 801
Toronto, Ontario M5C 2V9
Attention: Shimmy Posen
E-mail: sposen@garfinkle.com
Section 6. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the law of the State of Victoria, and each party irrevocably submits to the personal jurisdiction of the State of Victoria as the exclusive venue for adjudication of any dispute hereunder.
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Section 7. Entire Agreement.
This Agreement constitutes the full and entire understanding and agreement among the parties with regard to the subject matter hereof, and supersedes all prior agreements with respect to the subject matter hereof. The Requisitioning Shareholders may enter into a materially similar agreement with one or more other investors but any such agreement shall constitute a separate obligation and one investor shall not become a third party beneficiary of another investor’s agreement.
Section 8. Receipt of Adequate Information; No Reliance; Representation by Counsel.
Each party acknowledges that it has received adequate information to enter into this Agreement, that it has not relied on any promise, representation or warranty, express or implied not contained in this Agreement and that it has been represented by counsel in connection with this Agreement. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the intent of the parties.
Section 9. Indemnity.
The Investor agrees to indemnify the Requisitioning Shareholders for 88.1% of any damages, costs and legal expenses that arise after the date of this Agreement from any claim (“Claim”) made by, or other legal proceeding against, Snow Lake Resources Ltd. The Investor shall advance 88.1% of any amounts under this section prior to the resolution of the merits of any Claim in circumstances in which any Requisitioning Shareholder is required to pay or deposit any money as security for costs or retainer prior to being able to defend or contest the same.
Section 10. Severability.
If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. The parties further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the purposes of such invalid or unenforceable provision.
Section 11. Amendment.
This Agreement may be modified, amended or otherwise changed only in a writing signed by all of the parties.
Section 12. Termination.
This Agreement shall terminate at the Effective Time or other date established by mutual written agreement of the parties hereto. Notwithstanding the foregoing, Section 9 (Indemnity) shall survive the termination of this Agreement. No termination of this Agreement shall relieve any Party from liability for any breach of this Agreement prior to such termination.
This Agreement shall terminate upon the earliest to occur of:
| (i) | the written agreement of the Requisitioning Shareholders and the Investor; |
| (ii) | the Effective Time; |
| (iii) | the withdrawal of Requisition; and |
| (iv) | December 31, 2022. |
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Section 13. Injunctive Relief.
The parties to this Agreement agree that irreparable harm would occur for which money damages would not be an adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties to this Agreement shall be entitled to injunctive and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce compliance with the terms of this Agreement, without any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief, this being in addition to any other remedies to which the parties to this Agreement may be entitled at law or in equity.
Section 14. Successors and Assigns; No Third Party Beneficiaries.
This Agreement shall bind the successors and permitted assigns of the Parties, and inure to the benefit of any successor or permitted assign of any of the parties; provided, however, that no party may assign this Agreement without the prior written consent of the other parties.
Section 15. Counterparts.
This Agreement may be executed in any number of counterparts (including counterparts by email) and all such counterparts taken together shall be deemed to constitute one and the same instrument. The parties to this Agreement shall be entitled to rely upon delivery of an executed PDF or similar executed electronic copy of this Agreement, and such PDF or similar executed electronic copy shall be legally effective to create a valid and binding agreement between the parties hereto.
(Signature page follows)
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In Witness Whereof, the parties hereto have duly executed and delivered this Agreement as of the date first above written.
| NOVA MINERALS LIMITED | |
| : /s/ Christopher Gerteisen | |
| By: Christopher Gerteisen | |
| Title: Executive Director & CEO | |
| : /s/ Craig Bentley | |
| By: Craig Bentley | |
| Title: Director of Finance & Compliance |
| KUSHKUSH INVESTMENTS PLY LTD (ALEXANDRA DISCRETIONARY TRUST) | M + T K PTY
LTD < MTK SUPERANNUATION FUND> | |||
| Per: | /s/ Chana Kimelman | Per: | /s/ Moishe Kimelman | |
| Chana Kimelman, Director | Moishe Kimelman, Director | |||
| DELAWARE IR LLC | ||||
| Per: | /s/ Menachem Wagner | /s/ Benjamin Abraham Fogelgarn | ||
| Menachem Wagner, Manager | Benjamin Abraham Fogelgarn | |||
| YUKOR MIPOZ PTY LTD | ||||
| /s/ Nikola Najdoski | Per: | /s/ Mordechai Zalman Fixler | ||
| Nikola Najdoski | Mordechai Zalman Fixler, Director | |||
| OZZI PTY LTD | DEERHUNTER INVESTMENTS PTY LTD | |||
| Per: | /s/ Mordechai Zalman Fixler | Per: | /s/ Romy Hersham | |
| Mordechai Zalman Fixler, Director | Romy Hersham, Director | |||
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Exhibit A
|
Requisitioning Shareholder |
Shares of Common Shares Owned | Notice |
| Kushkush Investments Ply Ltd (Alexandra Discretionary Trust) | 338,118 | |
| M + T K PTY LTD < MTK SUPERANNUATION FUND> | 51,338 | |
| Delaware IR LLC | 220,328 | |
| Benjamin Abraham Fogelgarn | 67,194 | |
| Nikola Najdoski | 112,043 | |
| Yukor Mipoz Pty Ltd | 45,580 | |
| Ozzi Pty Ltd | 45,580 | |
| Deerhunter Investments Pty Ltd | 91,610 |
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