Dominion Diamond Corporation
|
(Name of Issuer)
|
Common Stock
|
(Title of Class of Securities)
|
257287953
|
(CUSIP Number)
|
The K2 Principal Fund, L.P.
2 Bloor St West, Suite 801 Toronto, Ontario, M4W 3E2 Telephone Number: (416) 365-2155 |
((Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
|
Copies To:
|
Adam M. Givertz
Edwin S. Maynard
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
Telephone: (212) 373-3000
|
January 13, 2016
|
(Date of Event which Requires Filing of this Statement)
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 2 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The K2 Principal Fund, L.P.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
993,785
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
993,785
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
993,785
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 3 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
K2 GenPar L.P.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
993,785
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
993,785
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
993,785
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 4 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
K2 GenPar 2009 Inc.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
993,785
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
993,785
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
993,785
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 5 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
K2 & Associates Investment Management Inc.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
993,785
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
993,785
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
993,785
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 6 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Shawn Kimel Investments, Inc.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
993,785
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
993,785
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
993,785
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 7 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Shawn Kimel
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
993,785
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
993,785
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
993,785
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 8 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprott Inc.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
50,000
|
8
|
SHARED VOTING POWER
1,163,090
|
|
9
|
SOLE DISPOSITIVE POWER
50,000
|
|
10
|
SHARED DISPOSITIVE POWER
1,163,090
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,213,090
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.4%
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 9 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprott Global Resource Investments Ltd.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
California
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
0
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
800
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
800
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 10 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprott Asset Management USA Inc.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
California
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
190
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
190
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
190
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 11 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Resource Capital Investments Corp.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Nevada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
1,000,000
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
1,000,000
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 12 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Exploration Capital Partners 1998-B LP
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
California
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
1,000,000
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
1,000,000
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 13 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprott Asset Management LP
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Ontario, Canada
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
162,100
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
162,100
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
162,100
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 14 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprott-Zijin Mining Master Fund
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
162,100
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
162,100
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
162,100
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
|
|
14
|
TYPE OF REPORTING PERSON
OO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 15 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John Paul Tognetti
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
PF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
1,405,500
|
8
|
SHARED VOTING POWER
113,100
|
|
9
|
SOLE DISPOSITIVE POWER
1,405,500
|
|
10
|
SHARED DISPOSITIVE POWER
113,100
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,518,600
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.8%
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 16 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Kyle Jason McLean
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
PF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Canadian
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
61,500
|
8
|
SHARED VOTING POWER
113,100
|
|
9
|
SOLE DISPOSITIVE POWER
61,500
|
|
10
|
SHARED DISPOSITIVE POWER
113,100
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
174,600
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 17 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Carlo Civelli
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
PF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Switzerland
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
1,000,000
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
1,000,000
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 18 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Pacific World Energy Ltd.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
0
|
8
|
SHARED VOTING POWER
1,000,000
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
1,000,000
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 19 of 26
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrick Charles Evans
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☐
(b) ☒
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
PF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
☐ |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
United States, United Kingdom and South Africa
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
10,000
|
8
|
SHARED VOTING POWER
0
|
|
9
|
SOLE DISPOSITIVE POWER
10,000
|
|
10
|
SHARED DISPOSITIVE POWER
0
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,000
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 20 of 26
|
Item 3.
|
Source and Amount of Funds or Other Consideration
|
Item 4.
|
Purpose of Transaction
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 21 of 26
|
Item 5.
|
Interest in Securities of the Issuer
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 22 of 26
|
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 23 of 26
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 24 of 26
|
K2 Principal Fund, L.P.
|
|||
By: K2 GenPar L.P., its general partner
|
|||
By: K2 GenPar 2009 Inc., its general partner
|
|||
|
|||
By:
|
/s/ Shawn Kimel | ||
|
Name: Shawn Kimel
|
||
Title: President
|
|||
|
|||
K2 GenPar L.P.
|
|||
|
|||
By: K2 GenPar 2009 Inc., its general partner
|
|||
|
|||
By:
|
/s/ Shawn Kimel | ||
|
Name: Shawn Kimel
|
||
Title: President
|
|||
|
|||
K2 GenPar 2009 Inc.
|
|||
|
|||
By:
|
/s/ Shawn Kimel | ||
|
Name: Shawn Kimel
|
||
Title: President
|
|||
|
|||
K2 & Associates Investment Management Inc.
|
|||
|
|||
|
|||
By:
|
/s/ Shawn Kimel | ||
|
Name: Shawn Kimel
|
||
Title: President
|
|||
|
|||
Shawn Kimel Investments, Inc.
|
|||
|
|||
By:
|
/s/ Shawn Kimel | ||
|
Name: Shawn Kimel
|
||
Title: President
|
|||
|
|||
|
|||
By:
|
/s/ Shawn Kimel | ||
Name: Shawn Kimel
|
|||
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 25 of 26
|
|
Sprott Inc.
|
||
|
|||
By:
|
/s/ Kirstin McTaggart | ||
|
Name: Kirstin McTaggart
|
||
Title: Authorized Signatory
|
|||
Sprott Global Resource Investments Ltd.
|
|||
|
|||
|
|||
By:
|
/s/ Thomas W. Ulrich | ||
|
Name: Thomas W. Ulrich
|
||
Title: General Counsel
|
|||
|
|||
Sprott Asset Management USA Inc.
|
|||
|
|||
By:
|
/s/ Thomas W. Ulrich | ||
|
Name: Thomas W. Ulrich
|
||
Title: General Counsel
|
|||
|
|||
Resource Capital Investments Corp.
|
|||
|
|||
By:
|
/s/ Thomas W. Ulrich | ||
|
Name: Thomas W. Ulrich
|
||
Title: General Counsel
|
|||
|
|||
Exploration Capital Partners 1998-B LP
|
|||
By: Resource Capital Investments Corp., its general partner
|
|||
|
|||
By:
|
/s/ Thomas W. Ulrich | ||
|
Name: Thomas W. Ulrich
|
||
Title: General Counsel
|
Sprott Asset Management LP
|
|||
By: Sprott Asset Management GP Inc., its general partner
|
|||
By:
|
/s/ Kirstin McTaggart | ||
Name: Kirstin McTaggart
|
|||
Title: Director & Chief Compliance Officer
|
|||
|
CUSIP No. 257287953
|
SCHEDULE 13D |
Page 26 of 26
|
Sprott-Zijin Mining Master Fund
|
|||
By:
|
Sprott Asset Management LP, its general partner | ||
By:
|
/s/ Kirstin McTaggart | ||
Name: Kirstin McTaggart
|
|||
Title: Director & Chief Compliance Officer
|
|
|||
|
|||
By:
|
/s/ John Paul Tognetti | ||
Name: John Paul Tognetti
|
|||
|
|||
|
|||
By:
|
/s/ Kyle Jason McLean | ||
Name: Kyle Jason McLean
|
|||
|
|||
|
|||
By:
|
/s/ Carlo Civelli | ||
Name: Carlo Civelli
|
|||
|
|||
Pacific World Energy Ltd.
|
|||
By:
|
/s/ Carlo Civelli | ||
Name: Carlo Civelli
|
|||
Title: Director
|
|||
|
|||
|
|||
By:
|
/s/ Patrick Charles Evans | ||
|
Name: Patrick Charles Evans
|
Date of
Transaction |
Security
|
Amount of
Securities Bought (Sold)* |
Unit Cost**
|
Expiration Date
|
Where and How
Effected
|
12/24/2015
|
American Style Listed Put Option
|
29,300
|
US$10.00
|
2/19/2016
|
Open Market
|
12/28/2015
|
American Style Listed Put Option
|
10,000
|
US$10.00
|
1/15/2016
|
Open Market
|
12/28/2015
|
American Style Listed Put Option
|
21,000
|
US$10.00
|
2/19/2016
|
Open Market
|
12/29/2015
|
Common Shares
|
30,000
|
C$13.99
|
N/A
|
Open Market
|
12/29/2015
|
Common Shares
|
2,400
|
US$10.08
|
N/A
|
Open Market
|
12/30/2015
|
Common Shares
|
30,000
|
C$14.00
|
N/A
|
Open Market
|
12/30/2015
|
American Style Listed Put Option
|
5,000
|
US$10.00
|
1/15/2016
|
Open Market
|
12/30/2015
|
American Style Listed Put Option
|
18,700
|
US$10.00
|
1/15/2016
|
Open Market
|
12/30/2015
|
American Style Listed Put Option
|
7,000
|
US$10.00
|
2/19/2016
|
Open Market
|
12/30/2015
|
American Style Listed Put Option
|
1,500
|
US$10.00
|
2/19/2016
|
Open Market
|
12/30/2015
|
Common Shares
|
20,000
|
US$10.07
|
N/A
|
Open Market
|
12/31/2015
|
Common Shares
|
26,680
|
C$14.00
|
N/A
|
Open Market
|
12/31/2015
|
American Style Listed Put Option
|
13,000
|
US$10.00
|
1/15/2016
|
Open Market
|
12/31/2015
|
American Style Listed Put Option
|
18,000
|
US$10.00
|
2/19/2016
|
Open Market
|
12/31/2015
|
Common Shares
|
4,400
|
US$10.08
|
N/A
|
Open Market
|
1/4/2016
|
Common Shares
|
4,100
|
C$14.03
|
N/A
|
Open Market
|
1/4/2016
|
American Style Listed Put Option
|
2,000
|
US$10.00
|
1/15/2016
|
Open Market
|
1/4/2016
|
American Style Listed Put Option
|
16,000
|
US$10.00
|
2/19/2016
|
Open Market
|
Date of
Transaction |
Security
|
Amount of
Securities Bought (Sold)* |
Unit Cost**
|
Expiration Date
|
Where and How
Effected
|
1/4/2016
|
Common Shares
|
3,900
|
US$10.07
|
N/A
|
Open Market
|
1/5/2016
|
American Style Listed Put Option
|
3,000
|
C$11.00
|
2/19/2016
|
Open Market
|
1/6/2016
|
Common Shares
|
11,900
|
C$14.12
|
N/A
|
Open Market
|
1/6/2016
|
American Style Listed Put Option
|
6,000
|
US$10.00
|
1/15/2016
|
Open Market
|
1/6/2016
|
American Style Listed Put Option
|
6,000
|
US$10.00
|
2/19/2016
|
Open Market
|
1/6/2016
|
Common Shares
|
20,000
|
US$10.06
|
N/A
|
Open Market
|
1/7/2016
|
American Style Listed Put Option
|
20,000
|
US$10.00
|
5/20/2016
|
Open Market
|
Date of
Transaction |
Security
|
Amount of
Securities Bought (Sold) |
Unit Cost
|
Expiration Date
|
Where and How
Effected
|
1/14/2016
|
Common Shares
|
5,500
|
C$14.00
|
N/A
|
Open Market
|
Date of
Transaction |
Security
|
Amount of
Securities Bought (Sold)* |
Unit Cost**
|
Expiration Date
|
Where and How
Effected
|
12/21/2015
|
American Style Listed Call Option
|
10,000
|
US$7.50
|
1/15/2016
|
Open Market
|
12/31/2015
|
American Style Listed Call Option
|
10,000
|
US$7.50
|
8/19/2016
|
Open Market
|
Date of
Transaction |
Security
|
Amount of
Securities Bought (Sold)* |
Unit Cost**
|
Expiration Date
|
Where and How
Effected
|
12/30/2015
|
American Style Listed Put Option
|
131,500
|
US$10.00
|
1/15/2016
|
Open Market
|
A. | Dominion Diamond Corporation ("Dominion"), on the one hand, and a group of its shareholders comprised of Patrick Charles Evans, Resource Capital Investments Corp. as general partner of the Exploration Capital Partners 1998-B Limited Partnership, K2 & Associates Investment Management Inc., Kyle Jason McLean, Pacific World Energy Ltd. and John Paul Tognetti, and certain of their respective affiliates and associates (collectively, the "Concerned Shareholders"), on the other hand, have agreed to a resolution of certain matters related to the future governance of Dominion. |
B. | Dominion and the Concerned Shareholders have agreed to appoint each of Jim Gowans and Josef Vejvoda (collectively, the "Shareholder Nominees") as directors of Dominion. |
1. | Immediately following the execution of this Agreement: |
(a) | the Shareholder Nominees shall be appointed to the Board of Directors of Dominion (the "Board") to fill the two existing casual vacancies on the Board; and |
(b) | during the term of this Agreement, at least one of the Shareholder Nominees and the Additional Director (as defined below) shall be appointed as a member of each of the committees of the Board. |
2. | Following his appointment as a member of the Board pursuant to this Agreement, the Board shall cause Jim Gowans to be appointed as the non-executive Chairman of the Board in the place of the current Chairman of the Board by April 30, 2016. |
3. | The Nominating and Corporate Governance Committee of the Board (the "Nominating Committee") shall continue its existing search process to identify and appoint to the Board an additional independent director who qualifies as a "financial expert" and is willing and qualified to serve as the chair of the Audit Committee of the Board (the "Additional Director"). The Nominating Committee shall continue to be comprised solely of independent directors and, consistent with Section 1(b) of this Agreement, shall include Josef Vejvoda. The Nominating Committee shall be required to unanimously approve the appointment to the Board of the individual identified as the Additional Director. Dominion shall appoint the Additional Director to the Board and as the chair of the Audit Committee of the Board by no later than February 29, 2016. |
4. | In connection with the consideration of strategic alternatives for Dominion that may arise from time to time, at each meeting of the Board where such strategic alternatives are considered, the Board shall be at liberty to continue its practice of holding in-camera |
sessions with only independent directors present (who, for greater certainty, do not include Mr. Robert A. Gannicott or Mr. Brendan Bell) at the commencement and at the conclusion of each such meeting, provided that nothing in this Section 4 shall preclude the Board from establishing a committee of independent directors in future to consider such matters. The independent directors shall continue to be entitled to have Dominion's outside advisors present or excluded from any such in-camera sessions. |
5. | Dominion shall promptly reimburse the Concerned Shareholders for all reasonable and documented out-of-pocket third party costs, fees and expenses incurred by them (i) prior to the date hereof in connection with this Agreement and the transactions contemplated herein, and (ii) related to the termination of the agreement of the Concerned Shareholders to act as a group in relation to Dominion and the making of related regulatory filings, including without limitation the fees and disbursements of legal counsel and proxy advisors to the Concerned Shareholders, subject to a maximum amount of C$750,000. |
6. | Dominion shall include each of the Shareholder Nominees and the Additional Director in its slate of directors (the "Company Slate") to be nominated for election by shareholders at the 2016 AGM. Dominion shall recommend in its Information Circular to be disseminated in connection with the 2016 AGM that the shareholders vote in favour of the Shareholder Nominees and the Additional Director, will solicit proxies in favour of the election of the Shareholder Nominees and the Additional Director, and will specify that the proxyholder identified in management's form of proxy or voting instruction form will vote or cause to be voted all proxies received by Dominion in the manner specified by such proxies and, if no voting instructions are provided, in favour of such Shareholder Nominees and the Additional Director. |
7. | The chairman of the Board of Directors, from time to time, shall not be an officer of Dominion or a director or officer of any subsidiary of Dominion or hold the equivalent position of director or officer in any joint venture in which Dominion or any of its subsidiaries is a participant or be a member of any management committee or technical committee of any such joint venture. |
8. | The Concerned Shareholders shall, and shall cause each of their respective affiliates and associates to: |
(a) | vote all common shares of Dominion owned of record, and |
(b) | cause the record owner to vote all common shares of Dominion beneficially owned or controlled but not owned of record, in each case directly or indirectly, by it or by any of their respective affiliates or associates, |
9. | Upon and after their appointment to the Board, the Shareholder Nominees shall be governed by the same statutory and company obligations under Dominion's articles, by-laws, code of ethics, trading and disclosure policies and other governance guidelines in the same manner and to the same extent as are applicable from time to time to all of the directors of the Board, and shall be entitled to the same protections, rights and benefits, including with respect to insurance, indemnification, compensation and fees as are applicable to the current directors of the Board. Each of the Shareholder Nominees shall be provided with an indemnity agreement substantially in the form of Schedule A attached to this Agreement, reflecting their rights to indemnity pursuant to section 5.2 of By-Law No. 1 of Dominion, and shall promptly be provided with evidence reasonably satisfactory to them that they are entitled to the protection of Dominion's directors and officers liability insurance. |
10. | From the date hereof until the earlier of January 31, 2017 or the termination of this Agreement in accordance with Section 14 hereof (the "Standstill Period"), none of the Concerned Shareholders nor any of their respective affiliates and associates (other than affiliates and associates of ECP), nor any of their respective officers, directors or employees, will, directly or indirectly, whether individually or by acting jointly or in concert with any other person: |
(a) | engage in, participate in, or in any way initiate, directly or indirectly, any "solicitation" (as such term is defined in the Canada Business Corporations Act (the "CBCA")) of proxies or consents, with respect to the voting of any securities of Dominion; |
(b) | initiate, propose or otherwise "solicit" (as such term is defined in the CBCA) securityholders of Dominion to vote any securities of Dominion on any matter; |
(c) | deposit any securities of Dominion in any voting trust or subject any securities of Dominion to any arrangement or agreement with respect to the voting of any such securities; |
(d) | seek, alone or in concert with others, (i) to requisition or call a meeting of shareholders of Dominion, (ii) to obtain representation on, or nominate or propose the nomination of any candidate for election to, the Board, or (iii) to effect the removal of any member of the Board or otherwise alter the composition of the Board; |
(e) | submit, or induce any person to submit, any shareholder proposal pursuant to section 137 of the CBCA; or |
(f) | enter into any discussions, agreements or understandings with any person with respect to or in contemplation of the foregoing, or advise, assist or encourage any person to take any action inconsistent with the foregoing. |
11. | Until the end of the Standstill Period: |
(a) | the Concerned Shareholders shall refrain from making, causing to be made, or allowing any of the Concerned Shareholders and their respective affiliates and associates (other than affiliates and associates of ECP) or their respective principals, directors, officers, employees, agents or other persons acting on their behalf to make, any statement or announcement that criticizes or disparages Dominion, its business or plans, its affiliates, or any of their respective current or former officers, directors, employees, consultants, advisors or agents; provided that, the foregoing shall not preclude any Concerned Shareholder or their respective affiliates or associates or their respective principals, directors, officers or employees from making, causing to be made, or allowing any of the foregoing persons to make statements with respect to Dominion and its business in the ordinary course of such persons investment advisory business, where applicable; and |
(b) | Dominion shall refrain from making, causing to be made, or allowing any of its affiliates or their respective officers, directors, employees, consultants, advisors, or agents or other persons acting on their behalf to make, any statement or announcement that criticizes or disparages the Concerned Shareholders and their respective affiliates and associates or their respective principals, officers, directors or employees. |
12. | Each Concerned Shareholder jointly and severally represents and warrants as follows to Dominion and acknowledges and agrees that Dominion is relying upon the representations and warranties in connection with entering into this Agreement: |
(a) | it is the beneficial owner of or exercises control or direction over the number of common shares of Dominion set forth on Schedule B hereto and such common shares constitute all of the voting securities of Dominion beneficially owned or controlled by the Concerned Shareholders or any of their respective affiliates or associates; |
(b) | the Shareholder Nominees are independent of Dominion for the purposes of National Instrument 52-110 – Audit Committees and are otherwise qualified under applicable laws and regulatory and stock exchange requirements to serve as a member of the Board and as members of the Audit Committee of the Board; |
(c) | if the Concerned Shareholder is a corporation, the Concerned Shareholder is a corporation duly incorporated and validly existing under the laws of its jurisdiction; it has the requisite corporate power and capacity and has received all requisite approvals to execute and deliver this Agreement and to perform its obligations hereunder. If the Concerned Shareholder is a limited partnership, the Concerned Shareholder is a limited partnership duly formed and validly existing under the laws of its jurisdiction; it has the requisite power and capacity and has received all requisite approvals to execute and deliver this Agreement and to perform its obligations hereunder. If the Concerned Shareholder is an individual, the Concerned Shareholder has the full power and |
capacity to execute and deliver this Agreement and to perform its obligations hereunder; |
(d) | this Agreement has been duly executed and delivered by the Concerned Shareholder and constitutes a legal, valid and binding obligation, enforceable against each of the Concerned Shareholders in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting creditors' rights generally, and to general principles of equity; and |
(e) | the execution and delivery of and performance by the Concerned Shareholders of this Agreement: |
(i) | do not and will not (and would not with the giving of notice, the lapse of time or the happening of any other event or condition) constitute or result in a violation or breach of, or conflict with, or allow any other person to exercise any rights under, any of the terms or provisions of its constating documents, by-laws or partnership agreement, as applicable, of such Concerned Shareholder; |
(ii) | do not and will not (and would not with the giving of notice, the lapse of time or the happening or any other event or condition) constitute or result in a breach or violation of, or conflict with or allow any other person to exercise any rights under, any of the terms or provisions of any contracts or instruments to which such Concerned Shareholder is a party; and |
(iii) | do not and will not result in the violation of any applicable law. |
13. | Dominion represents and warrants as follows to the Concerned Shareholders and acknowledges and agrees that the Concerned Shareholders are relying upon the representations and warranties in connection with entering into this Agreement: |
(a) | Robert A. Gannicott is neither a director nor an officer of any subsidiary of Dominion and does not hold the equivalent position of director or officer in any joint venture in which Dominion or any of its subsidiaries are participants nor is he a member of any management committee or technical committee of any such joint venture; |
(b) | it is a corporation duly incorporated and validly existing under the laws of Canada; it has the requisite corporate power and capacity and has received all requisite approvals to execute and deliver this Agreement and to perform its obligations hereunder; |
(c) | this Agreement has been duly executed and delivered by Dominion and constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other similar laws affecting creditors' rights generally, and to general principles of equity; and |
(d) | the execution and delivery of and performance by Dominion of this Agreement: |
(i) | 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) constitute or result in a violation or breach of, or conflict with, or allow any other person to exercise any rights under, any of the terms or provisions of its constating documents or by-laws; |
(ii) | do not and will not (or would not with the giving of notice, the lapse of time or the happening or any other event or condition) constitute or result in a breach or violation of, or conflict with or allow any other person to exercise any rights under, any of the terms or provisions of any contracts or instruments to which it is a party; and |
(iii) | do not and will not result in the violation of any applicable law. |
14. | This Agreement will terminate: |
(a) | upon written notice by the Concerned Shareholders if Dominion shall have materially breached any representation, warranty or covenant under this Agreement; |
(b) | upon written notice by Dominion if the Concerned Shareholders shall have materially breached any representation, warranty or covenant under this Agreement; or |
(c) | at the end of the Standstill Period. |
15. | The Concerned Shareholders acknowledge that any Confidential Information (as defined below) is confidential to and may be proprietary to Dominion. The Concerned |
Shareholders shall, and shall cause each of their affiliates and associates, to keep Confidential Information in strict confidence and to not disclose Confidential Information to any other person, whether furnished by or on behalf of Dominion before or after the date of this Agreement and regardless of the manner or form in which it is furnished, and the Concerned Shareholders shall, and shall cause each of their affiliates and associates, to take all reasonable precautions to safeguard the Confidential Information from disclosure to anyone. Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of direct or indirect disclosure in violation of this Agreement, (ii) is or becomes available on a non-confidential basis from a source other than Dominion, its affiliates or their respective officers, directors, employees, agents or other persons acting on their behalf, provided such source is not disclosing such information in violation of a duty of confidentiality to Dominion, or (iii) was known to the Concerned Shareholder on a non-confidential basis prior to its disclosure by Dominion, its affiliates or their respective officers, directors, employees, agents or other persons acting on their behalf. For purposes of this Agreement, "Confidential Information" means all non-public, proprietary and confidential information of or concerning or relating to Dominion or any of its affiliates which has been made or may be made available to the Concerned Shareholders, in any form, including without limitation: (i) all information on the business, assets, financial affairs and operations of Dominion (including, as applicable, all information relating to the Ekati Diamond Mine and all information relating to the Diavik Diamond Mine); (ii) any trade secret, technical, financial or business information, plans, data, ideas, concepts or know-how of Dominion; and (iii) any notes, work papers or other documents which contain, reflect or are based upon such Confidential Information. |
16. | Immediately following execution of this Agreement, Dominion shall issue a news release, in the form attached to this Agreement as Schedule C. No other news release, public statement or announcement or other public disclosure (a "Public Statement") with respect to this Agreement or the transactions contemplated hereby will be issued by Dominion or any of the Concerned Shareholders or their affiliates or associates without the prior written consent and approval of the Concerned Shareholders and Dominion, except as required by applicable law. Where the Public Statement is required by applicable law, the party required to make the Public Statement will use its commercially reasonable efforts to give prior notice to the other party and reasonable opportunity for the other party to review or comment on the disclosure or filing. |
17. | This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, and the parties hereto hereby irrevocably attorn to the jurisdiction of the Courts thereof. |
18. | This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and replaces any and all other agreements, arrangements or understandings between or among the parties, whether oral or in writing. |
19. | Each party hereto agrees to execute and deliver all such documents and to do all such other acts and things as may be reasonably necessary from time to time to give full effect to the provisions and intent of this Agreement. |
20. | The parties agree that irreparable damage would occur in the event any of the provisions of this Agreement were not performed in accordance with the terms hereof and that such damage would not be adequately compensable in damages. It is accordingly agreed that the parties are entitled to seek an injunction or specific performance of the terms hereof in addition to any other remedies at law or in equity, and a party will not take any action, directly or indirectly, in opposition to another party seeking relief on the grounds that any other remedy or relief is available at law or in equity, and the parties hereto further agree to waive any requirement for the security or posting of any bond in connection with such remedy or relief. |
21. | If any provision of this Agreement is determined to be illegal, invalid or unenforceable, in whole or in part, by a court of competent jurisdiction, that provision or part thereof will be severed and will not affect or impair the enforceability or validity of any other provision of this Agreement or any part thereof. |
22. | This Agreement and the rights of the parties hereto may not be assigned by any party without the prior written consent of the other parties. All the terms and provisions of this Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors and permitted assigns. |
23. | Any notice, direction or other communication given pursuant to this Agreement (each a "Notice") must be in writing, sent by personal delivery, courier, facsimile or email and addressed: |
if to the Concerned Shareholders:
|
Patrick Charles Evans
8700 E. Pinnacle Peak Road, Suite 205, Scottsdale, Arizona
85255 |
|||
Exploration Capital Partners 1998-B Limited
Partnership
1910 Palomar Point Way, Suite 200 Carlsbad, California 92008 |
||||
K2 & Associates Investment Management Inc.
2 Bloor Street West, Suite 801 Toronto, Ontario M4W 3E2 |
||||
Kyle Jason McLean
#700 – 200 Burrard Street Vancouver, British Columbia V6C 3L6 |
||||
Pacific World Energy Inc.
Morgan & Morgan Building Pasea Estate Road Town, Tortola B.V.I. |
John Paul Tognetti
#700 – 200 Burrard Street Vancouver, British Columbia V6C 3L6 |
|||
with a copy to:
|
Cassels Brock & Blackwell LLP
Suite 2200 885 West Georgia Street Vancouver, British Columbia V6C 3E8 |
||
Attention:
Email: Fax: |
Gordon R. Chambers
gchambers@casselsbrock.com (604) 691-6120 |
||
if to Dominion:
|
Dominion Diamond Corporation
P.O. Box 4569, Station A Toronto Ontario M5W 4T9 |
||
Attention:
Email: Fax: |
Daniel Jarvis, Lead Director
dojadvisors@gmail.com (867) 669-9293 |
||
with a copy to:
|
Stikeman Elliott LLP
5300 Commerce Court West 199 Bay Street Toronto, Ontario M5L 1B9 |
||
Attention:
Email: Fax: |
Sean Vanderpol
svanderpol@stikeman.com (416) 947-0866 |
24. | This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document. Each party shall be entitled to rely on delivery of a facsimile copy of this Agreement, and acceptance by any party of a facsimile copy of this Agreement shall create a legal, valid and binding agreement between and among the parties hereto in accordance with the terms hereof. |
25. | The term "person" as used herein shall be interpreted broadly and shall include, without limitation, any corporation, company, partnership, individual or other entity whatsoever. For the purpose of this Agreement, a person is an "affiliate" of another person if (i) one of this is a subsidiary of the other or (ii) each one of them is controlled, directly or indirectly, by the same person. A "subsidiary" means a person that is controlled directly or indirectly by another person and includes a subsidiary of that subsidiary. A person is considered to "control" another person if that person exercises control over that other person in any manner that results in control in fact, whether directly through the ownership of securities or indirectly through a trust, an agreement or arrangement or otherwise. |
26. | Time shall be of the essence hereof. |
DOMINION DIAMOND CORPORATION
|
|||||
By:
|
/s/ Daniel Jarvis | ||||
Name:
|
Daniel Jarvis
|
||||
Title:
|
Director
|
/s/ Patrick Charles Evans | ||
PATRICK CHARLES EVANS
|
||
EXPLORATION CAPITAL PARTNERS 1998-B LIMITED PARTNERSHIP, by its general partner, RESOURCE CAPITAL INVESTMENTS CORP.
|
|||||
By:
|
/s/ Arthur Richards Rule IV | ||||
Name:
|
Arthur Richards Rule IV
|
||||
Title:
|
Director
|
K2 & ASSOCIATES INVESTMENT MANAGEMENT INC.
|
|||||
By:
|
/s/ Shawn Kimel | ||||
Name:
|
Shawn Kimel
|
||||
Title:
|
President
|
/s/ Kyle Jason McLean | ||
KYLE JASON MCLEAN
|
||
PACIFIC WORLD ENERGY LTD.
|
|||||
By:
|
/s/ Carlo Civelli | ||||
Name:
|
Carlo Civelli
|
||||
Title:
|
Director
|
/s/ John Paul Tognetti | ||
JOHN PAUL TOGNETTI
|
||
[NAME AND ADDRESS]
|
|
● | as a director of Dominion Diamond Corporation (the "Corporation"); |
● | as an officer of the Corporation; |
● | as a director of any other entity to the extent that you are serving in such capacity at the request of the Corporation; or |
● | as an officer of any other entity to the extent that you are serving in such capacity at the request of the Corporation, |
(i) | the Corporation does not in a timely manner: |
(A) | undertake appropriate action in respect to a written notice delivered pursuant to Section 3; or |
(B) | take such legal steps as may be from time to time required to properly defend against any such claim, then you may do so at the expense and risk of the Corporation; or |
(ii) | in the reasonable opinion of your counsel (which opinion shall be in writing and a copy thereof provided to the Corporation) your interests in respect of the relevant matter conflict with the interests of the Corporation in respect of such matter or with the interests of any other director or officer of the Corporation in respect of whose defence the Corporation has carriage. |
DATED the
|
|
day of
|
|
, 2016.
|
By:
|
|
|
Lyle R. Hepburn, Corporate Secretary |
[NAME]
|
Witness
|
Concerned Shareholders and
Associates or Affiliates |
Number of Shares
Beneficially Owned |
Patrick Charles Evans
|
10,000
|
Exploration Capital Partners 1998-B Limited Partnership and its associates and affiliates (1)
|
1,213,090 (2)
|
Including:
|
|
Sprott Inc.
|
50,000
|
Sprott Asset Management USA Inc.
|
190
|
Sprott-Zijin Mining Master Fund
|
162,100
|
Sprott Global Resource Investments Ltd.
|
800
213,090
|
K2 & Associates Investment Management Inc. and its associates and affiliates
|
993,785 (3)
|
Kyle Jason McLean
|
174,600 (4)
|
John Paul Tognetti
|
1,493,100 (5)
|
Pacific World Energy Ltd.
|
1,000,000
|
(1)
|
Each of Sprott Inc., Sprott Global Resource Investments Ltd., Sprott Asset Management USA Inc. and Sprott-Zijin Mining Master Fund (collectively, the "Non-Participating Entities") is an affiliate of Resource Capital Investments Corp. and Exploration Partners 1998-B Limited Partnership. The Non-Participating Entities beneficially own or exercise direction or control over an aggregate of 213,090 Shares.
|
(2)
|
Exploration Partners 1998-B Limited Partnership beneficially owns 1,000,000 of the 1,213,090 Shares.
|
(3)
|
Such Shares are held by The K2 Principal Fund, L.P.
|
(4)
|
Mr. McLean jointly owns 113,100 of the 174,600 Shares with Mr. Tognetti.
|
(5)
|
Mr. Tognetti jointly owns 113,100 of the 1,513,100 Shares with Mr. McLean.
|
————-- | Jim Gowans – Mr. Gowans’ extensive operational experience and familiarity with all aspects of the mining industry, coupled with his informed perspective on corporate-social responsibility, makes him a valuable addition to the Board. Mr. Gowans has extensive leadership experience in the mining industry, both within Canada and internationally. He has served in senior executive roles for a number of major mining companies, and is a former Chair of the Mining Association of Canada. Mr. Gowans is currently President, Chief Executive Officer, and Director of Arizona Mining Inc., a Canadian mineral exploration company. Before joining Arizona, Mr. Gowans was Co-President of Barrick Gold Corporation from 2014 to 2015. He also served as Barrick’s Executive Vice President and Chief Operating Officer in 2014. From 2011 to 2014, Mr. Gowans was Managing Director of the Debswana Diamond Company in Botswana. From 2006 to 2010, he served as the CEO of DeBeers Canada Inc., and also acted as COO and Chief Technical Officer for DeBeers SA in 2010. |
-- | Josef Vejvoda, ICD.D – Mr. Vejvoda brings valuable financial expertise to the Board, including extensive experience with and knowledge of Canadian capital markets. He has served as a Portfolio Manager at K2 & Associates Investment Management Inc., a multi-strategy investment fund, since 2013. From 2007 to 2010, Mr. Vejvoda held leadership positions as Managing Director, Investment Banking, and Director at MGI Securities Inc., a Canadian investment dealer. Prior to assuming his roles at K2 and MGI, Mr. Vejvoda held senior roles at a number of Canada’s largest financial institutions, including Merrill Lynch Canada, Bank of Montreal, National Bank Financial and TD Securities. |
A. | each of Evans, K2, McLean, Pacific World, ECP and Tognetti (each, a “Shareholder” and together, the “Shareholders”) are a party to that certain agreement dated December 21, 2015 (the “Shareholder Agreement”) governing their relationship as shareholders or affiliates of shareholders of Dominion Diamond Corporation; and |
B. | pursuant to section 6.1 of the Shareholder Agreement the Shareholders wish to terminate the Shareholder Agreement. |
Section 1.1 | Termination |
Section 1.2 | Shareholders No Longer A Group |
Section 2.1 | Further Assurances |
Section 2.2 | Governing Law |
Section 2.3 | Entire Agreement |
Section 2.4 | Counterparts |
/s/ Patrick Charles Evans
|
|||
PATRICK CHARLES EVANS
|
EXPLORATION CAPITAL PARTNERS
1998-B LIMITED PARTNERSHIP, by its general partner,
RESOURCE CAPITAL INVESTMENTS CORP.
|
||||
|
By:
|
/s/ Arthur Richards Rule IV | ||
Name: | Arthur Richards Rule IV | |||
Title: | Director | |||
K2 & ASSOCIATES INVESTMENT
MANAGEMENT INC.
|
||||
|
By:
|
/s/ Shawn Kimel | ||
Name: |
Shawn Kimel
|
|||
Title: |
President
|
|||
/s/ Kyle Jason McLean
|
|||
KYLE JASON MCLEAN
|
PACIFIC WORLD ENERGY LTD.
|
||||
|
By:
|
/s/ Carlo Civelli | ||
Name: |
Carlo Civelli
|
|||
Title: |
Director
|
|||
/s/ John Paul Tognetti
|
|||
JOHN PAUL TOGNETTI
|