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STLLR Gold Inc. — M&A Activity 2021
Jan 22, 2021
43121_rns_2021-01-22_a2f0656b-118b-4e54-b203-9612b339d621.pdf
M&A Activity
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EXECUTION VERSION
January 13, 2021
O3 Mining Inc. 155 University Avenue Suite 1440 Toronto, Ontario M5H 3B7
Dear Sirs/Madams:
Re: Support and Voting Agreement
I understand that O3 Mining Inc. (“ O3 Mining ”) and Moneta Porcupine Mines Inc. (the “ Company ”) propose to enter into a share purchase agreement dated as of the date hereof (the “ Purchase Agreement ”) pursuant to which the Company will agree to acquire all of the issued and outstanding common shares of Northern Gold Mining Inc, a subsidiary of O3 Mining. (the “ Transaction ”). I understand that the entering into of this agreement is a requirement of O3 Mining in order for it to enter into the Purchase Agreement. In consideration of the entering into of the Purchase Agreement and the covenants, agreements and Transactions described therein, I hereby represent, warrant, covenant and agree as follows:
All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase Agreement.
I am the registered or beneficial owner of 100,000 common shares of the Company (the “ Holder Shares ”). For greater certainty, I acknowledge that any reference to "Holder Shares" in this letter agreement includes any common shares of the Company purchased pursuant to the exercise of any convertible securities, or in the market, by private agreement or otherwise, from the date hereof until the termination of this letter agreement.
I, Mark N.J. Ashcroft, hereby agree, solely in my capacity as the owner of the Holder Shares, and not in my capacity as an officer or director of the Company:
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(a) to vote or to cause to be voted the Holder Shares in favour of the Transaction Resolution and any other matter necessary for the completion of the Transaction at the meeting of shareholders of the Company held to consider it or any adjournment thereof (the “ Meeting ”);
-
(b) if I am the beneficial owner, but not the registered holder, of any of the Holder Shares, I hereby agree to take all actions necessary to cause the registered holder and any nominees to vote all of the Holder Shares in accordance with the foregoing;
-
(c) if requested by O3 Mining, acting reasonably, to deliver or to cause to be delivered to the Company duly executed proxies or voting instruction forms
-
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voting in favour of the Transaction Resolution as soon as reasonably practicable, and in any event, no later than ten (10) Business Days prior to the date of the Meeting and not take any action to withdraw, amend or invalidate any proxy or voting instruction form deposited pursuant to this letter agreement;
-
(d) prior to the conclusion of the Meeting, not to, directly or indirectly, sell, transfer, gift, pledge, hypothecate, encumber, option or otherwise assign or dispose of, or agree to sell, transfer, gift, pledge hypothecate, encumber, option or otherwise assign or dispose of any of the Holder Shares or any interest therein, without O3 Mining's prior written consent;
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(e) not to grant or agree to grant any proxies or powers of attorney, deliver any voting instruction form, deposit any Holder Shares into any voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written with respect to voting of any Holder Shares;
-
(f) not take any other actions of any kind, directly or indirectly, which would reasonably be expected to prevent, materially delay or impede the completion of the Transaction;
-
(g) to cause to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) the Holder Shares against any (i) Acquisition Proposal; or (ii) any matter which would reasonably be expected to prevent, materially delay or impede the successful completion of the Transaction;
-
(h) unless permitted in the Purchase Agreement:
-
(i) solicit, initiate or otherwise knowingly facilitate any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
-
(ii) participate in any substantive discussions or negotiations with any Person regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
-
(iii) accept or enter into, or publicly propose to accept or enter into, any agreement, arrangement or understanding in respect of an Acquisition Proposal; and
-
(i) hereby consents to:
-
(i) details of this letter agreement being set out in any press release, information circular, produced by the Company or O3 Mining in connection with the transactions contemplated by this letter agreement and the Purchase Agreement; and
-
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(ii) this letter agreement being made publicly available, including by filing on the System for Electronic Document Analysis and Retrieval (SEDAR) operated on behalf of the Securities Authorities.
This letter agreement may be terminated (i) at any time upon the mutual written consent of O3 Mining and the undersigned (ii) by the undersigned, if without prior written consent of the undersigned, the terms of the Purchase Agreement are amended in any manner adverse to the undersigned, (iii) by O3 Mining, if any representations and warranties of the undersigned in this letter agreement shall not be true and correct in all material respects or if the undersigned has not complied in all material respects with its covenants contained in this letter agreement.
This letter agreement shall automatically terminate on the earliest of the (i) the Closing Date or (ii) the date and time that the Purchase Agreement is terminated in accordance with its terms.
Notwithstanding any provision of this letter agreement to the contrary, O3 Mining hereby agrees and acknowledges that I am executing this letter agreement and am bound hereunder solely in my capacity as a securityholder of the Company. Nothing contained in this Agreement shall limit or affect any actions I may take in my capacity as a director or officer of the Company or limit or restrict in any way the exercise of my fiduciary duties as director or officer of the Company including, without limitation, responding in my capacity as a director or officer of the Company to an Acquisition Proposal and making any determinations in that regard in the exercise of my fiduciary duties, subject to compliance with the terms of the Purchase Agreement.
I hereby represent and warrant that: (a) I am the sole beneficial owner of the Holder Shares and have the sole right to vote all of the Holder Shares, and the requisite power and authority to enter into and perform the obligations under this letter agreement (b) the only common shares of the Company beneficially owned, directly or indirectly, by the undersigned on the date hereof are the Holder Shares, (c) this letter agreement has been duly executed and constitutes a legal, valid and binding agreement on my part, (d) no Person has any agreement or option or any right or privilege capable of becoming an agreement or option for the proxy, voting, voting trust, vote pooling or purchase of the Holder Shares, and (e) in the event I am signing on behalf of a corporation that holds the Holder Shares, such corporation is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite corporate power, capacity and authority to enter into this letter agreement and perform its obligations hereunder.
This letter agreement constitutes the entire agreement among the parties with respect to the subject hereof and supersedes all prior agreements and understanding among the parties with respect thereto.
The parties agree that irreparable harm may occur for which money damages may not be an adequate remedy at law in the event that any of the provisions of this letter agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to injunctive and other equitable relief to prevent breaches of this letter agreement, and to enforce compliance with the terms of this
- 4 -
letter 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 remedy to which the parties may be entitled at law or in equity.
Each party hereto agrees and confirms that any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all of the parties or in the case of a waiver, by the party against whom the waiver is to be effective. No waiver of any of the provisions of this letter agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure or delay in exercising any right under this letter agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.
If any provision of this letter agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this letter agreement and the remaining provisions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner such that the transactions contemplated hereby are fulfilled to the fullest extent possible.
The provisions of this letter agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this letter agreement without the prior written consent of the other parties hereto,
This letter agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party hereto irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of the Province of Ontario and waivers object to the venue of any proceeding in such court of that such court provides an inconvenient forum.
I hereby acknowledge that I have been afforded with the opportunity to obtain independent legal advice and confirm by the executions and deliver of this letter agreement that I have either done so or waived my right to do so in connection with the entering into of this letter agreement.
Each party hereto agrees that it will pay all costs and expenses (including the fees and disbursements of legal counsel and other advisers) it incurs in connection with the negotiation, preparation and execution of this letter agreement the transactions contemplated by this letter agreement.
Each of the undersigned and O3 Mining will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party may reasonably require and at the requesting party’s cost to effectively carry out or better evidence or perfect the full intent and meaning of this letter agreement.
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This letter agreement may be executed in any number of counterparts (including counterparts by facsimile or electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
If the foregoing is in accordance with your understanding and is agreed to by you, please signify your acceptance by executing the enclosed copies of this letter where indicated below and returning the same to the undersigned, upon which this letter as so accepted shall constitute an agreement among us.
[Remainder of page intentionally left blank. Signature page follows.]
Yours truly,
(Signed) Mark N.J. Ashcroft
Mark N.J. Ashcroft
[Signature Page – Support and Voting Agreement]
Accepted and agreed on this 13[th] day of January, 2021.
O3 MINING INC.
(Signed) Jose Vizquerra Benavides Authorized Signing Officer
[Signature Page – Support and Voting Agreement]
EXECUTION VERSION
January 13, 2021
O3 Mining Inc. 155 University Avenue Suite 1440 Toronto, Ontario M5H 3B7
Dear Sirs/Madams:
Re: Support and Voting Agreement
I understand that O3 Mining Inc. (“ O3 Mining ”) and Moneta Porcupine Mines Inc. (the “ Company ”) propose to enter into a share purchase agreement dated as of the date hereof (the “ Purchase Agreement ”) pursuant to which the Company will agree to acquire all of the issued and outstanding common shares of Northern Gold Mining Inc, a subsidiary of O3 Mining. (the “ Transaction ”). I understand that the entering into of this agreement is a requirement of O3 Mining in order for it to enter into the Purchase Agreement. In consideration of the entering into of the Purchase Agreement and the covenants, agreements and Transactions described therein, I hereby represent, warrant, covenant and agree as follows:
All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase Agreement.
I am the registered or beneficial owner of 6,132,500 common shares of the Company (the “ Holder Shares ”). For greater certainty, I acknowledge that any reference to "Holder Shares" in this letter agreement includes any common shares of the Company purchased pursuant to the exercise of any convertible securities, or in the market, by private agreement or otherwise, from the date hereof until the termination of this letter agreement.
I, Alex Henry, hereby agree, solely in my capacity as the owner of the Holder Shares, and not in my capacity as an officer or director of the Company:
-
(a) to vote or to cause to be voted the Holder Shares in favour of the Transaction Resolution and any other matter necessary for the completion of the Transaction at the meeting of shareholders of the Company held to consider it or any adjournment thereof (the “ Meeting ”);
-
(b) if I am the beneficial owner, but not the registered holder, of any of the Holder Shares, I hereby agree to take all actions necessary to cause the registered holder and any nominees to vote all of the Holder Shares in accordance with the foregoing;
-
(c) if requested by O3 Mining, acting reasonably, to deliver or to cause to be delivered to the Company duly executed proxies or voting instruction forms
-
2 -
voting in favour of the Transaction Resolution as soon as reasonably practicable, and in any event, no later than ten (10) Business Days prior to the date of the Meeting and not take any action to withdraw, amend or invalidate any proxy or voting instruction form deposited pursuant to this letter agreement;
-
(d) prior to the conclusion of the Meeting, not to, directly or indirectly, sell, transfer, gift, pledge, hypothecate, encumber, option or otherwise assign or dispose of, or agree to sell, transfer, gift, pledge hypothecate, encumber, option or otherwise assign or dispose of any of the Holder Shares or any interest therein, without O3 Mining's prior written consent;
-
(e) not to grant or agree to grant any proxies or powers of attorney, deliver any voting instruction form, deposit any Holder Shares into any voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written with respect to voting of any Holder Shares;
-
(f) not take any other actions of any kind, directly or indirectly, which would reasonably be expected to prevent, materially delay or impede the completion of the Transaction;
-
(g) to cause to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) the Holder Shares against any (i) Acquisition Proposal; or (ii) any matter which would reasonably be expected to prevent, materially delay or impede the successful completion of the Transaction;
-
(h) unless permitted in the Purchase Agreement:
-
(i) solicit, initiate or otherwise knowingly facilitate any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
-
(ii) participate in any substantive discussions or negotiations with any Person regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
-
(iii) accept or enter into, or publicly propose to accept or enter into, any agreement, arrangement or understanding in respect of an Acquisition Proposal; and
-
(i) hereby consents to:
-
(i) details of this letter agreement being set out in any press release, information circular, produced by the Company or O3 Mining in connection with the transactions contemplated by this letter agreement and the Purchase Agreement; and
-
3 -
-
(ii) this letter agreement being made publicly available, including by filing on the System for Electronic Document Analysis and Retrieval (SEDAR) operated on behalf of the Securities Authorities.
This letter agreement may be terminated (i) at any time upon the mutual written consent of O3 Mining and the undersigned (ii) by the undersigned, if without prior written consent of the undersigned, the terms of the Purchase Agreement are amended in any manner adverse to the undersigned, (iii) by O3 Mining, if any representations and warranties of the undersigned in this letter agreement shall not be true and correct in all material respects or if the undersigned has not complied in all material respects with its covenants contained in this letter agreement.
This letter agreement shall automatically terminate on the earliest of the (i) the Closing Date or (ii) the date and time that the Purchase Agreement is terminated in accordance with its terms.
Notwithstanding any provision of this letter agreement to the contrary, O3 Mining hereby agrees and acknowledges that I am executing this letter agreement and am bound hereunder solely in my capacity as a securityholder of the Company. Nothing contained in this Agreement shall limit or affect any actions I may take in my capacity as a director or officer of the Company or limit or restrict in any way the exercise of my fiduciary duties as director or officer of the Company including, without limitation, responding in my capacity as a director or officer of the Company to an Acquisition Proposal and making any determinations in that regard in the exercise of my fiduciary duties, subject to compliance with the terms of the Purchase Agreement.
I hereby represent and warrant that: (a) I am the sole beneficial owner of the Holder Shares and have the sole right to vote all of the Holder Shares, and the requisite power and authority to enter into and perform the obligations under this letter agreement (b) the only common shares of the Company beneficially owned, directly or indirectly, by the undersigned on the date hereof are the Holder Shares, (c) this letter agreement has been duly executed and constitutes a legal, valid and binding agreement on my part, (d) no Person has any agreement or option or any right or privilege capable of becoming an agreement or option for the proxy, voting, voting trust, vote pooling or purchase of the Holder Shares, and (e) in the event I am signing on behalf of a corporation that holds the Holder Shares, such corporation is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite corporate power, capacity and authority to enter into this letter agreement and perform its obligations hereunder.
This letter agreement constitutes the entire agreement among the parties with respect to the subject hereof and supersedes all prior agreements and understanding among the parties with respect thereto.
The parties agree that irreparable harm may occur for which money damages may not be an adequate remedy at law in the event that any of the provisions of this letter agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to injunctive and other equitable relief to prevent breaches of this letter agreement, and to enforce compliance with the terms of this
- 4 -
letter 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 remedy to which the parties may be entitled at law or in equity.
Each party hereto agrees and confirms that any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all of the parties or in the case of a waiver, by the party against whom the waiver is to be effective. No waiver of any of the provisions of this letter agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure or delay in exercising any right under this letter agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.
If any provision of this letter agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this letter agreement and the remaining provisions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner such that the transactions contemplated hereby are fulfilled to the fullest extent possible.
The provisions of this letter agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this letter agreement without the prior written consent of the other parties hereto,
This letter agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party hereto irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of the Province of Ontario and waivers object to the venue of any proceeding in such court of that such court provides an inconvenient forum.
I hereby acknowledge that I have been afforded with the opportunity to obtain independent legal advice and confirm by the executions and deliver of this letter agreement that I have either done so or waived my right to do so in connection with the entering into of this letter agreement.
Each party hereto agrees that it will pay all costs and expenses (including the fees and disbursements of legal counsel and other advisers) it incurs in connection with the negotiation, preparation and execution of this letter agreement the transactions contemplated by this letter agreement.
Each of the undersigned and O3 Mining will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party may reasonably require and at the requesting party’s cost to effectively carry out or better evidence or perfect the full intent and meaning of this letter agreement.
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This letter agreement may be executed in any number of counterparts (including counterparts by facsimile or electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
If the foregoing is in accordance with your understanding and is agreed to by you, please signify your acceptance by executing the enclosed copies of this letter where indicated below and returning the same to the undersigned, upon which this letter as so accepted shall constitute an agreement among us.
[Remainder of page intentionally left blank. Signature page follows.]
Yours truly,
(Signed) Alex Henry
Alex Henry
[Signature Page – Support and Voting Agreement]
Accepted and agreed on this 13[th] day of January, 2021.
O3 MINING INC.
(Signed) Jose Vizquerra Benavides Authorized Signing Officer
[Signature Page – Support and Voting Agreement]
EXECUTION VERSION
January 13, 2021
O3 Mining Inc. 155 University Avenue Suite 1440 Toronto, Ontario M5H 3B7
Dear Sirs/Madams:
Re: Support and Voting Agreement
I understand that O3 Mining Inc. (“ O3 Mining ”) and Moneta Porcupine Mines Inc. (the “ Company ”) propose to enter into a share purchase agreement dated as of the date hereof (the “ Purchase Agreement ”) pursuant to which the Company will agree to acquire all of the issued and outstanding common shares of Northern Gold Mining Inc, a subsidiary of O3 Mining. (the “ Transaction ”). I understand that the entering into of this agreement is a requirement of O3 Mining in order for it to enter into the Purchase Agreement. In consideration of the entering into of the Purchase Agreement and the covenants, agreements and Transactions described therein, I hereby represent, warrant, covenant and agree as follows:
All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase Agreement.
I am the registered or beneficial owner of 2,484,500 common shares of the Company (the “ Holder Shares ”). For greater certainty, I acknowledge that any reference to "Holder Shares" in this letter agreement includes any common shares of the Company purchased pursuant to the exercise of any convertible securities, or in the market, by private agreement or otherwise, from the date hereof until the termination of this letter agreement.
I, Gary O'Connor, hereby agree, solely in my capacity as the owner of the Holder Shares, and not in my capacity as an officer or director of the Company:
-
(a) to vote or to cause to be voted the Holder Shares in favour of the Transaction Resolution and any other matter necessary for the completion of the Transaction at the meeting of shareholders of the Company held to consider it or any adjournment thereof (the “ Meeting ”);
-
(b) if I am the beneficial owner, but not the registered holder, of any of the Holder Shares, I hereby agree to take all actions necessary to cause the registered holder and any nominees to vote all of the Holder Shares in accordance with the foregoing;
-
(c) if requested by O3 Mining, acting reasonably, to deliver or to cause to be delivered to the Company duly executed proxies or voting instruction forms
-
2 -
voting in favour of the Transaction Resolution as soon as reasonably practicable, and in any event, no later than ten (10) Business Days prior to the date of the Meeting and not take any action to withdraw, amend or invalidate any proxy or voting instruction form deposited pursuant to this letter agreement;
-
(d) prior to the conclusion of the Meeting, not to, directly or indirectly, sell, transfer, gift, pledge, hypothecate, encumber, option or otherwise assign or dispose of, or agree to sell, transfer, gift, pledge hypothecate, encumber, option or otherwise assign or dispose of any of the Holder Shares or any interest therein, without O3 Mining's prior written consent;
-
(e) not to grant or agree to grant any proxies or powers of attorney, deliver any voting instruction form, deposit any Holder Shares into any voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written with respect to voting of any Holder Shares;
-
(f) not take any other actions of any kind, directly or indirectly, which would reasonably be expected to prevent, materially delay or impede the completion of the Transaction;
-
(g) to cause to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) the Holder Shares against any (i) Acquisition Proposal; or (ii) any matter which would reasonably be expected to prevent, materially delay or impede the successful completion of the Transaction;
-
(h) unless permitted in the Purchase Agreement:
-
(i) solicit, initiate or otherwise knowingly facilitate any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
-
(ii) participate in any substantive discussions or negotiations with any Person regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
-
(iii) accept or enter into, or publicly propose to accept or enter into, any agreement, arrangement or understanding in respect of an Acquisition Proposal; and
-
(i) hereby consents to:
-
(i) details of this letter agreement being set out in any press release, information circular, produced by the Company or O3 Mining in connection with the transactions contemplated by this letter agreement and the Purchase Agreement; and
-
3 -
-
(ii) this letter agreement being made publicly available, including by filing on the System for Electronic Document Analysis and Retrieval (SEDAR) operated on behalf of the Securities Authorities.
This letter agreement may be terminated (i) at any time upon the mutual written consent of O3 Mining and the undersigned (ii) by the undersigned, if without prior written consent of the undersigned, the terms of the Purchase Agreement are amended in any manner adverse to the undersigned, (iii) by O3 Mining, if any representations and warranties of the undersigned in this letter agreement shall not be true and correct in all material respects or if the undersigned has not complied in all material respects with its covenants contained in this letter agreement.
This letter agreement shall automatically terminate on the earliest of the (i) the Closing Date or (ii) the date and time that the Purchase Agreement is terminated in accordance with its terms.
Notwithstanding any provision of this letter agreement to the contrary, O3 Mining hereby agrees and acknowledges that I am executing this letter agreement and am bound hereunder solely in my capacity as a securityholder of the Company. Nothing contained in this Agreement shall limit or affect any actions I may take in my capacity as a director or officer of the Company or limit or restrict in any way the exercise of my fiduciary duties as director or officer of the Company including, without limitation, responding in my capacity as a director or officer of the Company to an Acquisition Proposal and making any determinations in that regard in the exercise of my fiduciary duties, subject to compliance with the terms of the Purchase Agreement.
I hereby represent and warrant that: (a) I am the sole beneficial owner of the Holder Shares and have the sole right to vote all of the Holder Shares, and the requisite power and authority to enter into and perform the obligations under this letter agreement (b) the only common shares of the Company beneficially owned, directly or indirectly, by the undersigned on the date hereof are the Holder Shares, (c) this letter agreement has been duly executed and constitutes a legal, valid and binding agreement on my part, (d) no Person has any agreement or option or any right or privilege capable of becoming an agreement or option for the proxy, voting, voting trust, vote pooling or purchase of the Holder Shares, and (e) in the event I am signing on behalf of a corporation that holds the Holder Shares, such corporation is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite corporate power, capacity and authority to enter into this letter agreement and perform its obligations hereunder.
This letter agreement constitutes the entire agreement among the parties with respect to the subject hereof and supersedes all prior agreements and understanding among the parties with respect thereto.
The parties agree that irreparable harm may occur for which money damages may not be an adequate remedy at law in the event that any of the provisions of this letter agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to injunctive and other equitable relief to prevent breaches of this letter agreement, and to enforce compliance with the terms of this
- 4 -
letter 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 remedy to which the parties may be entitled at law or in equity.
Each party hereto agrees and confirms that any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all of the parties or in the case of a waiver, by the party against whom the waiver is to be effective. No waiver of any of the provisions of this letter agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure or delay in exercising any right under this letter agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.
If any provision of this letter agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this letter agreement and the remaining provisions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner such that the transactions contemplated hereby are fulfilled to the fullest extent possible.
The provisions of this letter agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this letter agreement without the prior written consent of the other parties hereto,
This letter agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party hereto irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of the Province of Ontario and waivers object to the venue of any proceeding in such court of that such court provides an inconvenient forum.
I hereby acknowledge that I have been afforded with the opportunity to obtain independent legal advice and confirm by the executions and deliver of this letter agreement that I have either done so or waived my right to do so in connection with the entering into of this letter agreement.
Each party hereto agrees that it will pay all costs and expenses (including the fees and disbursements of legal counsel and other advisers) it incurs in connection with the negotiation, preparation and execution of this letter agreement the transactions contemplated by this letter agreement.
Each of the undersigned and O3 Mining will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party may reasonably require and at the requesting party’s cost to effectively carry out or better evidence or perfect the full intent and meaning of this letter agreement.
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This letter agreement may be executed in any number of counterparts (including counterparts by facsimile or electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
If the foregoing is in accordance with your understanding and is agreed to by you, please signify your acceptance by executing the enclosed copies of this letter where indicated below and returning the same to the undersigned, upon which this letter as so accepted shall constitute an agreement among us.
[Remainder of page intentionally left blank. Signature page follows.]
Yours truly,
(Signed) Gary O’Connor
Gary O’Connor
[Signature Page – Support and Voting Agreement]
Accepted and agreed on this 13[th] day of January, 2021.
O3 MINING INC.
(Signed) Jose Vizquerra Benavides Authorized Signing Officer
[Signature Page – Support and Voting Agreement]
EXECUTION VERSION
January 13, 2021
O3 Mining Inc. 155 University Avenue Suite 1440 Toronto, Ontario M5H 3B7
Dear Sirs/Madams:
Re: Support and Voting Agreement
I understand that O3 Mining Inc. (“ O3 Mining ”) and Moneta Porcupine Mines Inc. (the “ Company ”) propose to enter into a share purchase agreement dated as of the date hereof (the “ Purchase Agreement ”) pursuant to which the Company will agree to acquire all of the issued and outstanding common shares of Northern Gold Mining Inc, a subsidiary of O3 Mining. (the “ Transaction ”). I understand that the entering into of this agreement is a requirement of O3 Mining in order for it to enter into the Purchase Agreement. In consideration of the entering into of the Purchase Agreement and the covenants, agreements and Transactions described therein, I hereby represent, warrant, covenant and agree as follows:
All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase Agreement.
I am the registered or beneficial owner of 8,914,722 common shares of the Company (the “ Holder Shares ”). For greater certainty, I acknowledge that any reference to "Holder Shares" in this letter agreement includes any common shares of the Company purchased pursuant to the exercise of any convertible securities, or in the market, by private agreement or otherwise, from the date hereof until the termination of this letter agreement.
I, Ian C. Peres, hereby agree, solely in my capacity as the owner of the Holder Shares, and not in my capacity as an officer or director of the Company:
-
(a) to vote or to cause to be voted the Holder Shares in favour of the Transaction Resolution and any other matter necessary for the completion of the Transaction at the meeting of shareholders of the Company held to consider it or any adjournment thereof (the “ Meeting ”);
-
(b) if I am the beneficial owner, but not the registered holder, of any of the Holder Shares, I hereby agree to take all actions necessary to cause the registered holder and any nominees to vote all of the Holder Shares in accordance with the foregoing;
-
(c) if requested by O3 Mining, acting reasonably, to deliver or to cause to be delivered to the Company duly executed proxies or voting instruction forms
-
2 -
voting in favour of the Transaction Resolution as soon as reasonably practicable, and in any event, no later than ten (10) Business Days prior to the date of the Meeting and not take any action to withdraw, amend or invalidate any proxy or voting instruction form deposited pursuant to this letter agreement;
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(d) prior to the conclusion of the Meeting, not to, directly or indirectly, sell, transfer, gift, pledge, hypothecate, encumber, option or otherwise assign or dispose of, or agree to sell, transfer, gift, pledge hypothecate, encumber, option or otherwise assign or dispose of any of the Holder Shares or any interest therein, without O3 Mining's prior written consent;
-
(e) not to grant or agree to grant any proxies or powers of attorney, deliver any voting instruction form, deposit any Holder Shares into any voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written with respect to voting of any Holder Shares;
-
(f) not take any other actions of any kind, directly or indirectly, which would reasonably be expected to prevent, materially delay or impede the completion of the Transaction;
-
(g) to cause to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) the Holder Shares against any (i) Acquisition Proposal; or (ii) any matter which would reasonably be expected to prevent, materially delay or impede the successful completion of the Transaction;
-
(h) unless permitted in the Purchase Agreement:
-
(i) solicit, initiate or otherwise knowingly facilitate any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
-
(ii) participate in any substantive discussions or negotiations with any Person regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
-
(iii) accept or enter into, or publicly propose to accept or enter into, any agreement, arrangement or understanding in respect of an Acquisition Proposal; and
-
(i) hereby consents to:
-
(i) details of this letter agreement being set out in any press release, information circular, produced by the Company or O3 Mining in connection with the transactions contemplated by this letter agreement and the Purchase Agreement; and
-
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-
(ii) this letter agreement being made publicly available, including by filing on the System for Electronic Document Analysis and Retrieval (SEDAR) operated on behalf of the Securities Authorities.
This letter agreement may be terminated (i) at any time upon the mutual written consent of O3 Mining and the undersigned (ii) by the undersigned, if without prior written consent of the undersigned, the terms of the Purchase Agreement are amended in any manner adverse to the undersigned, (iii) by O3 Mining, if any representations and warranties of the undersigned in this letter agreement shall not be true and correct in all material respects or if the undersigned has not complied in all material respects with its covenants contained in this letter agreement.
This letter agreement shall automatically terminate on the earliest of the (i) the Closing Date or (ii) the date and time that the Purchase Agreement is terminated in accordance with its terms.
Notwithstanding any provision of this letter agreement to the contrary, O3 Mining hereby agrees and acknowledges that I am executing this letter agreement and am bound hereunder solely in my capacity as a securityholder of the Company. Nothing contained in this Agreement shall limit or affect any actions I may take in my capacity as a director or officer of the Company or limit or restrict in any way the exercise of my fiduciary duties as director or officer of the Company including, without limitation, responding in my capacity as a director or officer of the Company to an Acquisition Proposal and making any determinations in that regard in the exercise of my fiduciary duties, subject to compliance with the terms of the Purchase Agreement.
I hereby represent and warrant that: (a) I am the sole beneficial owner of the Holder Shares and have the sole right to vote all of the Holder Shares, and the requisite power and authority to enter into and perform the obligations under this letter agreement (b) the only common shares of the Company beneficially owned, directly or indirectly, by the undersigned on the date hereof are the Holder Shares, (c) this letter agreement has been duly executed and constitutes a legal, valid and binding agreement on my part, (d) no Person has any agreement or option or any right or privilege capable of becoming an agreement or option for the proxy, voting, voting trust, vote pooling or purchase of the Holder Shares, and (e) in the event I am signing on behalf of a corporation that holds the Holder Shares, such corporation is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite corporate power, capacity and authority to enter into this letter agreement and perform its obligations hereunder.
This letter agreement constitutes the entire agreement among the parties with respect to the subject hereof and supersedes all prior agreements and understanding among the parties with respect thereto.
The parties agree that irreparable harm may occur for which money damages may not be an adequate remedy at law in the event that any of the provisions of this letter agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to injunctive and other equitable relief to prevent breaches of this letter agreement, and to enforce compliance with the terms of this
- 4 -
letter 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 remedy to which the parties may be entitled at law or in equity.
Each party hereto agrees and confirms that any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all of the parties or in the case of a waiver, by the party against whom the waiver is to be effective. No waiver of any of the provisions of this letter agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure or delay in exercising any right under this letter agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.
If any provision of this letter agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this letter agreement and the remaining provisions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner such that the transactions contemplated hereby are fulfilled to the fullest extent possible.
The provisions of this letter agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this letter agreement without the prior written consent of the other parties hereto,
This letter agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party hereto irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of the Province of Ontario and waivers object to the venue of any proceeding in such court of that such court provides an inconvenient forum.
I hereby acknowledge that I have been afforded with the opportunity to obtain independent legal advice and confirm by the executions and deliver of this letter agreement that I have either done so or waived my right to do so in connection with the entering into of this letter agreement.
Each party hereto agrees that it will pay all costs and expenses (including the fees and disbursements of legal counsel and other advisers) it incurs in connection with the negotiation, preparation and execution of this letter agreement the transactions contemplated by this letter agreement.
Each of the undersigned and O3 Mining will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party may reasonably require and at the requesting party’s cost to effectively carry out or better evidence or perfect the full intent and meaning of this letter agreement.
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This letter agreement may be executed in any number of counterparts (including counterparts by facsimile or electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
If the foregoing is in accordance with your understanding and is agreed to by you, please signify your acceptance by executing the enclosed copies of this letter where indicated below and returning the same to the undersigned, upon which this letter as so accepted shall constitute an agreement among us.
[Remainder of page intentionally left blank. Signature page follows.]
Yours truly,
(Signed) Ian C. Peres
Ian C. Peres
[Signature Page – Support and Voting Agreement]
Accepted and agreed on this 13[th] day of January, 2021.
O3 MINING INC.
(Signed) Jose Vizquerra Benavides Authorized Signing Officer
[Signature Page – Support and Voting Agreement]
EXECUTION VERSION
January 13, 2021
O3 Mining Inc. 155 University Avenue Suite 1440 Toronto, Ontario M5H 3B7
Dear Sirs/Madams:
Re: Support and Voting Agreement
I understand that O3 Mining Inc. (“ O3 Mining ”) and Moneta Porcupine Mines Inc. (the “ Company ”) propose to enter into a share purchase agreement dated as of the date hereof (the “ Purchase Agreement ”) pursuant to which the Company will agree to acquire all of the issued and outstanding common shares of Northern Gold Mining Inc, a subsidiary of O3 Mining. (the “ Transaction ”). I understand that the entering into of this agreement is a requirement of O3 Mining in order for it to enter into the Purchase Agreement. In consideration of the entering into of the Purchase Agreement and the covenants, agreements and Transactions described therein, I hereby represent, warrant, covenant and agree as follows:
All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase Agreement.
I am the registered or beneficial owner of 32,487,500 common shares of the Company (the “ Holder Shares ”). For greater certainty, I acknowledge that any reference to "Holder Shares" in this letter agreement includes any common shares of the Company purchased pursuant to the exercise of any convertible securities, or in the market, by private agreement or otherwise, from the date hereof until the termination of this letter agreement.
I, Josef Vejvoda, hereby agree, solely in my capacity as the owner of the Holder Shares, and not in my capacity as an officer or director of the Company:
-
(a) to vote or to cause to be voted the Holder Shares in favour of the Transaction Resolution and any other matter necessary for the completion of the Transaction at the meeting of shareholders of the Company held to consider it or any adjournment thereof (the “ Meeting ”);
-
(b) if I am the beneficial owner, but not the registered holder, of any of the Holder Shares, I hereby agree to take all actions necessary to cause the registered holder and any nominees to vote all of the Holder Shares in accordance with the foregoing;
-
(c) if requested by O3 Mining, acting reasonably, to deliver or to cause to be delivered to the Company duly executed proxies or voting instruction forms
-
2 -
voting in favour of the Transaction Resolution as soon as reasonably practicable, and in any event, no later than ten (10) Business Days prior to the date of the Meeting and not take any action to withdraw, amend or invalidate any proxy or voting instruction form deposited pursuant to this letter agreement;
-
(d) prior to the conclusion of the Meeting, not to, directly or indirectly, sell, transfer, gift, pledge, hypothecate, encumber, option or otherwise assign or dispose of, or agree to sell, transfer, gift, pledge hypothecate, encumber, option or otherwise assign or dispose of any of the Holder Shares or any interest therein, without O3 Mining's prior written consent;
-
(e) not to grant or agree to grant any proxies or powers of attorney, deliver any voting instruction form, deposit any Holder Shares into any voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written with respect to voting of any Holder Shares;
-
(f) not take any other actions of any kind, directly or indirectly, which would reasonably be expected to prevent, materially delay or impede the completion of the Transaction;
-
(g) to cause to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) the Holder Shares against any (i) Acquisition Proposal; or (ii) any matter which would reasonably be expected to prevent, materially delay or impede the successful completion of the Transaction;
-
(h) unless permitted in the Purchase Agreement:
-
(i) solicit, initiate or otherwise knowingly facilitate any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
-
(ii) participate in any substantive discussions or negotiations with any Person regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
-
(iii) accept or enter into, or publicly propose to accept or enter into, any agreement, arrangement or understanding in respect of an Acquisition Proposal; and
-
(i) hereby consents to:
-
(i) details of this letter agreement being set out in any press release, information circular, produced by the Company or O3 Mining in connection with the transactions contemplated by this letter agreement and the Purchase Agreement; and
-
3 -
-
(ii) this letter agreement being made publicly available, including by filing on the System for Electronic Document Analysis and Retrieval (SEDAR) operated on behalf of the Securities Authorities.
This letter agreement may be terminated (i) at any time upon the mutual written consent of O3 Mining and the undersigned (ii) by the undersigned, if without prior written consent of the undersigned, the terms of the Purchase Agreement are amended in any manner adverse to the undersigned, (iii) by O3 Mining, if any representations and warranties of the undersigned in this letter agreement shall not be true and correct in all material respects or if the undersigned has not complied in all material respects with its covenants contained in this letter agreement.
This letter agreement shall automatically terminate on the earliest of the (i) the Closing Date or (ii) the date and time that the Purchase Agreement is terminated in accordance with its terms.
Notwithstanding any provision of this letter agreement to the contrary, O3 Mining hereby agrees and acknowledges that I am executing this letter agreement and am bound hereunder solely in my capacity as a securityholder of the Company. Nothing contained in this Agreement shall limit or affect any actions I may take in my capacity as a director or officer of the Company or limit or restrict in any way the exercise of my fiduciary duties as director or officer of the Company including, without limitation, responding in my capacity as a director or officer of the Company to an Acquisition Proposal and making any determinations in that regard in the exercise of my fiduciary duties, subject to compliance with the terms of the Purchase Agreement.
I hereby represent and warrant that: (a) I am the sole beneficial owner of the Holder Shares and have the sole right to vote all of the Holder Shares, and the requisite power and authority to enter into and perform the obligations under this letter agreement (b) the only common shares of the Company beneficially owned, directly or indirectly, by the undersigned on the date hereof are the Holder Shares, (c) this letter agreement has been duly executed and constitutes a legal, valid and binding agreement on my part, (d) no Person has any agreement or option or any right or privilege capable of becoming an agreement or option for the proxy, voting, voting trust, vote pooling or purchase of the Holder Shares, and (e) in the event I am signing on behalf of a corporation that holds the Holder Shares, such corporation is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite corporate power, capacity and authority to enter into this letter agreement and perform its obligations hereunder.
This letter agreement constitutes the entire agreement among the parties with respect to the subject hereof and supersedes all prior agreements and understanding among the parties with respect thereto.
The parties agree that irreparable harm may occur for which money damages may not be an adequate remedy at law in the event that any of the provisions of this letter agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to injunctive and other equitable relief to prevent breaches of this letter agreement, and to enforce compliance with the terms of this
- 4 -
letter 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 remedy to which the parties may be entitled at law or in equity.
Each party hereto agrees and confirms that any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all of the parties or in the case of a waiver, by the party against whom the waiver is to be effective. No waiver of any of the provisions of this letter agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure or delay in exercising any right under this letter agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.
If any provision of this letter agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this letter agreement and the remaining provisions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner such that the transactions contemplated hereby are fulfilled to the fullest extent possible.
The provisions of this letter agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this letter agreement without the prior written consent of the other parties hereto,
This letter agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party hereto irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of the Province of Ontario and waivers object to the venue of any proceeding in such court of that such court provides an inconvenient forum.
I hereby acknowledge that I have been afforded with the opportunity to obtain independent legal advice and confirm by the executions and deliver of this letter agreement that I have either done so or waived my right to do so in connection with the entering into of this letter agreement.
Each party hereto agrees that it will pay all costs and expenses (including the fees and disbursements of legal counsel and other advisers) it incurs in connection with the negotiation, preparation and execution of this letter agreement the transactions contemplated by this letter agreement.
Each of the undersigned and O3 Mining will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party may reasonably require and at the requesting party’s cost to effectively carry out or better evidence or perfect the full intent and meaning of this letter agreement.
- 5 -
This letter agreement may be executed in any number of counterparts (including counterparts by facsimile or electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
If the foregoing is in accordance with your understanding and is agreed to by you, please signify your acceptance by executing the enclosed copies of this letter where indicated below and returning the same to the undersigned, upon which this letter as so accepted shall constitute an agreement among us.
[Remainder of page intentionally left blank. Signature page follows.]
Yours truly,
(Signed) Josef Vejvoda
Josef Vejvoda
[Signature Page – Support and Voting Agreement]
Accepted and agreed on this 13[th] day of January, 2021.
O3 MINING INC.
(Signed) Jose Vizquerra Benavides Authorized Signing Officer
[Signature Page – Support and Voting Agreement]
EXECUTION VERSION
January 13, 2021
O3 Mining Inc. 155 University Avenue Suite 1440 Toronto, Ontario M5H 3B7
Dear Sirs/Madams:
Re: Support and Voting Agreement
I understand that O3 Mining Inc. (“ O3 Mining ”) and Moneta Porcupine Mines Inc. (the “ Company ”) propose to enter into a share purchase agreement dated as of the date hereof (the “ Purchase Agreement ”) pursuant to which the Company will agree to acquire all of the issued and outstanding common shares of Northern Gold Mining Inc, a subsidiary of O3 Mining. (the “ Transaction ”). I understand that the entering into of this agreement is a requirement of O3 Mining in order for it to enter into the Purchase Agreement. In consideration of the entering into of the Purchase Agreement and the covenants, agreements and Transactions described therein, I hereby represent, warrant, covenant and agree as follows:
All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase Agreement.
I am the registered or beneficial owner of 7,116,600 common shares of the Company (the “ Holder Shares ”). For greater certainty, I acknowledge that any reference to "Holder Shares" in this letter agreement includes any common shares of the Company purchased pursuant to the exercise of any convertible securities, or in the market, by private agreement or otherwise, from the date hereof until the termination of this letter agreement.
I, Mark Wayne, hereby agree, solely in my capacity as the owner of the Holder Shares, and not in my capacity as an officer or director of the Company:
-
(a) to vote or to cause to be voted the Holder Shares in favour of the Transaction Resolution and any other matter necessary for the completion of the Transaction at the meeting of shareholders of the Company held to consider it or any adjournment thereof (the “ Meeting ”);
-
(b) if I am the beneficial owner, but not the registered holder, of any of the Holder Shares, I hereby agree to take all actions necessary to cause the registered holder and any nominees to vote all of the Holder Shares in accordance with the foregoing;
-
(c) if requested by O3 Mining, acting reasonably, to deliver or to cause to be delivered to the Company duly executed proxies or voting instruction forms
-
2 -
voting in favour of the Transaction Resolution as soon as reasonably practicable, and in any event, no later than ten (10) Business Days prior to the date of the Meeting and not take any action to withdraw, amend or invalidate any proxy or voting instruction form deposited pursuant to this letter agreement;
-
(d) prior to the conclusion of the Meeting, not to, directly or indirectly, sell, transfer, gift, pledge, hypothecate, encumber, option or otherwise assign or dispose of, or agree to sell, transfer, gift, pledge hypothecate, encumber, option or otherwise assign or dispose of any of the Holder Shares or any interest therein, without O3 Mining's prior written consent;
-
(e) not to grant or agree to grant any proxies or powers of attorney, deliver any voting instruction form, deposit any Holder Shares into any voting trust or pooling agreement, or enter into a voting agreement, commitment, understanding or arrangement, oral or written with respect to voting of any Holder Shares;
-
(f) not take any other actions of any kind, directly or indirectly, which would reasonably be expected to prevent, materially delay or impede the completion of the Transaction;
-
(g) to cause to be counted as present for purposes of establishing quorum and to vote (or cause to be voted) the Holder Shares against any (i) Acquisition Proposal; or (ii) any matter which would reasonably be expected to prevent, materially delay or impede the successful completion of the Transaction;
-
(h) unless permitted in the Purchase Agreement:
-
(i) solicit, initiate or otherwise knowingly facilitate any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
-
(ii) participate in any substantive discussions or negotiations with any Person regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
-
(iii) accept or enter into, or publicly propose to accept or enter into, any agreement, arrangement or understanding in respect of an Acquisition Proposal; and
-
(i) hereby consents to:
-
(i) details of this letter agreement being set out in any press release, information circular, produced by the Company or O3 Mining in connection with the transactions contemplated by this letter agreement and the Purchase Agreement; and
-
3 -
-
(ii) this letter agreement being made publicly available, including by filing on the System for Electronic Document Analysis and Retrieval (SEDAR) operated on behalf of the Securities Authorities.
This letter agreement may be terminated (i) at any time upon the mutual written consent of O3 Mining and the undersigned (ii) by the undersigned, if without prior written consent of the undersigned, the terms of the Purchase Agreement are amended in any manner adverse to the undersigned, (iii) by O3 Mining, if any representations and warranties of the undersigned in this letter agreement shall not be true and correct in all material respects or if the undersigned has not complied in all material respects with its covenants contained in this letter agreement.
This letter agreement shall automatically terminate on the earliest of the (i) the Closing Date or (ii) the date and time that the Purchase Agreement is terminated in accordance with its terms.
Notwithstanding any provision of this letter agreement to the contrary, O3 Mining hereby agrees and acknowledges that I am executing this letter agreement and am bound hereunder solely in my capacity as a securityholder of the Company. Nothing contained in this Agreement shall limit or affect any actions I may take in my capacity as a director or officer of the Company or limit or restrict in any way the exercise of my fiduciary duties as director or officer of the Company including, without limitation, responding in my capacity as a director or officer of the Company to an Acquisition Proposal and making any determinations in that regard in the exercise of my fiduciary duties, subject to compliance with the terms of the Purchase Agreement.
I hereby represent and warrant that: (a) I am the sole beneficial owner of the Holder Shares and have the sole right to vote all of the Holder Shares, and the requisite power and authority to enter into and perform the obligations under this letter agreement (b) the only common shares of the Company beneficially owned, directly or indirectly, by the undersigned on the date hereof are the Holder Shares, (c) this letter agreement has been duly executed and constitutes a legal, valid and binding agreement on my part, (d) no Person has any agreement or option or any right or privilege capable of becoming an agreement or option for the proxy, voting, voting trust, vote pooling or purchase of the Holder Shares, and (e) in the event I am signing on behalf of a corporation that holds the Holder Shares, such corporation is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite corporate power, capacity and authority to enter into this letter agreement and perform its obligations hereunder.
This letter agreement constitutes the entire agreement among the parties with respect to the subject hereof and supersedes all prior agreements and understanding among the parties with respect thereto.
The parties agree that irreparable harm may occur for which money damages may not be an adequate remedy at law in the event that any of the provisions of this letter agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to injunctive and other equitable relief to prevent breaches of this letter agreement, and to enforce compliance with the terms of this
- 4 -
letter 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 remedy to which the parties may be entitled at law or in equity.
Each party hereto agrees and confirms that any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by all of the parties or in the case of a waiver, by the party against whom the waiver is to be effective. No waiver of any of the provisions of this letter agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver. A party’s failure or delay in exercising any right under this letter agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right.
If any provision of this letter agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this letter agreement and the remaining provisions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner such that the transactions contemplated hereby are fulfilled to the fullest extent possible.
The provisions of this letter agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this letter agreement without the prior written consent of the other parties hereto,
This letter agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party hereto irrevocably attorns and submits to the non-exclusive jurisdiction of the courts of the Province of Ontario and waivers object to the venue of any proceeding in such court of that such court provides an inconvenient forum.
I hereby acknowledge that I have been afforded with the opportunity to obtain independent legal advice and confirm by the executions and deliver of this letter agreement that I have either done so or waived my right to do so in connection with the entering into of this letter agreement.
Each party hereto agrees that it will pay all costs and expenses (including the fees and disbursements of legal counsel and other advisers) it incurs in connection with the negotiation, preparation and execution of this letter agreement the transactions contemplated by this letter agreement.
Each of the undersigned and O3 Mining will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party may reasonably require and at the requesting party’s cost to effectively carry out or better evidence or perfect the full intent and meaning of this letter agreement.
- 5 -
This letter agreement may be executed in any number of counterparts (including counterparts by facsimile or electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument.
If the foregoing is in accordance with your understanding and is agreed to by you, please signify your acceptance by executing the enclosed copies of this letter where indicated below and returning the same to the undersigned, upon which this letter as so accepted shall constitute an agreement among us.
[Remainder of page intentionally left blank. Signature page follows.]
Yours truly,
(Signed) Mark Wayne
Mark Wayne
[Signature Page – Support and Voting Agreement]
Accepted and agreed on this 13[th] day of January, 2021.
O3 MINING INC.
(Signed) Jose Vizquerra Benavides Authorized Signing Officer
[Signature Page – Support and Voting Agreement]