TORONTO, March 21,
2023 /CNW/ -
TO: Shareholders of Nickel 28 Capital
Corp. (TSXV: NKL)
OFFER TO PURCHASE COMMON SHARES OF NICKEL 28
CAPITAL CORP.
Pelham Investment Partners LP ("Pelham LP" or the
"Offeror" or "we", "our", "us" and
similar pronouns) hereby offers to purchase up to an aggregate of
10,000,000 common shares (the "Common Shares")
of Nickel 28 Capital Corp. ("Nickel 28" or
the "Company"), including any Common Shares that may
become issued and outstanding upon exercise, exchange or conversion
of convertible securities after the date of the Tender Offer (as
defined below) but before the Expiry Time (as defined below), upon
the terms and subject to the conditions set out below (the
"Tender Offer"). Pelham LP's press release dated of even
date herewith sets out the rationale behind the Tender Offer and
Pelham LP urges all Shareholders (as defined below) to refer to
such press release and to contact our depositary and information
agent for the Tender Offer, Laurel Hill Advisory Group
(the "Depositary and Information Agent") at 70
University Avenue, Suite 1440, Toronto,
ON Canada M5J 2M4, or by
toll-free telephone in North
America at 1-877-452-7184 or calls outside North America at 1-416-304-0211 or by email at
assistance@laurelhill.com for more information.
1. The Tender Offer
The Tender Offer is being made to all registered and beneficial
shareholders of Nickel 28 (each a "Shareholder") to purchase
up to an aggregate of 10,000,000 Common Shares from
Shareholders at a price equal to $1.20 per Common Share (subject to
applicable withholding taxes, if any)
(the "Tender Offer Price") to be paid in cash on
the terms and subject to the conditions set forth herein and in the
letter of transmittal in respect of the Tender Offer (the
"Letter of Transmittal"). The Common Shares are listed on
the TSX Venture Exchange (the "TSXV") under the trading
symbol "NKL". The Tender Offer Price is equal to approximately a
22% premium to the closing price of the Common Shares on the TSXV
on March 20, 2023 (the last trading
day prior to the announcement of the Tender Offer), and
approximately a 23% premium to the volume-weighted average price of
the Company shares for the thirty (30) trading days preceding the
announcement of the Tender Offer.
The Tender Offer is not subject to any financing condition, and
Pelham LP confirms that it has sufficient cash resources to pay for
all Common Shares subject to the Tender Offer.
The Tender Offer is open for acceptance until 5:00 p.m. (Eastern Time) on April 25, 2023, or until such later time that the
Tender Offer may be extended or varied (the "Expiry Time"),
or, in the event the conditions to the Tender Offer are not met,
until the Tender Offer is withdrawn by Pelham LP, in each case in
its sole and absolute discretion.
In accordance with the terms of the Letter of Transmittal if,
prior to the date that the transfer of Deposited Common Shares that
are taken up and paid for by Pelham LP has been completed, Nickel
28 sets a record date for the determination of Shareholders
entitled to receive notice of, and/or to vote at, a meeting of
holders of relevant securities of Nickel 28 (whether annual,
special or otherwise, or any adjournment or postponement thereof,
collectively referred to as a "Meeting"), a Shareholder that
validly deposits Common Shares pursuant to the Tender Offer (each,
a "Deposited Common Share"), will appoint representatives of
Pelham LP as its nominees and proxy in respect of all Deposited
Common Shares that are taken up and purchased under the Tender
Offer for any such Meeting. Pelham LP is relying on the exemption
under section 9.2(4) of National Instrument 51-102 – Continuous
Disclosure Obligations to make a public broadcast solicitation
of proxies. For further details, please see Section 10 of Schedule
"A" to this letter.
Please refer to Schedule "A" to this letter for more details on
the Tender Offer.
2. Manner of
Acceptance
Registered Shareholders who wish to accept the Tender Offer
must, prior to the Expiry Time, complete and execute the Letter of
Transmittal and tender it, or a manually executed facsimile
thereof, together with physical certificates or DRS Statements
representing Common Shares and any other documents required by the
Letter of Transmittal, to the Depositary and Information Agent at
the office of the Depositary and Information Agent set out on the
back page of the Letter of Transmittal. Beneficial holders of
Common Shares ("Beneficial Shareholders") who wish to accept
the Tender Offer should contact their broker or other intermediary
or clearing agency for instructions and assistance in receiving
consideration for their Common Shares.
Shareholders can contact the Depositary and Information Agent
for detailed instructions on how to deposit their Common Shares to
the Offeror.
The Depositary and Information Agent for the
Tender Offer is:
Laurel Hill Advisory Group
North American Toll Free:
1-877-452-7184
Outside of North
America: 1-416-304-0211
E-mail:
assistance@laurelhill.com
By depositing your Common Shares to the Tender Offer you are
agreeing to and acknowledging the terms and conditions set out in
this letter, including Schedule "A", and the Letter of
Transmittal.
You are advised to seek independent legal, financial and tax
advice with respect to the Tender Offer and the consequences of the
consummation of the transactions contemplated herein.
THE OFFER, AND THE RELATED LETTER OF TRANSMITTAL, HAVE NOT
BEEN APPROVED OR DISAPPROVED BY ANY SECURITIES REGULATORY AUTHORITY
(IN CANADA OR ELSEWHERE) OR
SECURITIES EXCHANGE, NOR HAS ANY SECURITIES REGULATORY AUTHORITY OR
SECURITIES EXCHANGE PASSED UPON THE FAIRNESS OR MERITS OF THE
PREMIUM TENDER OR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION
CONTAINED IN THIS OFFER. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
3. Terms and
Conditions of the Tender Offer
The Tender Offer is subject to and conditioned on the terms and
conditions set out in Schedule "A" attached to this letter.
Should you have any questions with respect to the Tender
Offer or require any assistance delivering your Common Shares,
please contact the Depositary and Information Agent as
detailed at the back of this Offer.
|
|
PELHAM INVESTMENT
PARTNERS LP
|
Per:
|
(signed) "Ned
Collery"
|
|
Name: Ned
Collery
Title: Managing Member
of the General
Partner
|
SCHEDULE "A"
TERMS AND CONDITIONS OF OFFER TO PURCHASE
COMMON SHARES OF NICKEL 28 CAPITAL CORP.
1. The Tender
Offer
The Offeror offers to purchase up to 10,000,000 Common Shares,
in the aggregate, at a price equal to $1.20 per Common Share to be paid in cash, all
subject to the terms and conditions set forth herein.
Notwithstanding any other provision of the Tender Offer, Pelham
LP expressly reserves the right, in its sole and absolute
discretion at any time, to: (i) extend or vary the Tender Offer
(ii) withdraw the Tender Offer if the conditions thereto are not
met and, if withdrawn, Pelham LP will not be required to take up or
pay for any Common Shares delivered pursuant to the Tender Offer,
or (iii) extend the period of time during which the Tender Offer is
open, and if so extended, postpone taking up and paying for any
Common Shares delivered under the Tender Offer. If the Tender Offer
is withdrawn by Pelham LP, Pelham LP shall cause all Common Shares
delivered pursuant to the instructions below to be returned to the
Shareholders.
The Offeror reserves the right to acquire, or to cause an
affiliate or associate of the Offeror to acquire, beneficial
ownership of Common Shares by making purchases through the
facilities of the TSXV at any time, and from time to time, prior to
the Expiry Time subject to and in accordance with applicable law.
Any such purchases will not result in a decrease to the maximum
number of Common Shares subject to the Tender Offer and, in the
event that greater than 10,000,000 Common Shares are tendered to
the Tender Offer and the terms and conditions of the Tender Offer
are satisfied or waived, as applicable, under no circumstances will
the Offeror take up and pay for less than 10,000,000 Deposited
Common Shares. In no event, however, will the Offeror (or its
affiliates or associates) make any such purchases of Common Shares
that would result in the Offeror, together with its affiliates and
associates, beneficially owning or exercising control or direction
over 20% or more of the outstanding Common Shares upon completion
of the Offer.
All terms and conditions of the Tender Offer contained in
this Schedule "A" should be carefully reviewed by Shareholders
wishing to deposit their Common Shares to the Tender Offer.
2. The
Deposit of Common Shares to the Tender Offer
Registered Shareholders that wish to accept the Tender Offer
must, prior to the Expiry Time, complete and execute the Letter of
Transmittal and tender it, or a manually executed facsimile
thereof, together with physical certificates or DRS Statements
representing Common Shares and any other documents required by the
Letter of Transmittal, to the Depositary and Information Agent at
the office of the Depositary and Information Agent set out on the
back page of the Letter of Transmittal.
A copy of the Letter of Transmittal has been posted at
www.sedar.com under the Company's profile, at
www.nickel28offer.com, and can also be obtained by Shareholders
without charge from the Depositary and Information Agent at
1-877-452-7184 (North American Toll Free Number) or 1-416-304-0211
(outside North America), or by
email at assistance@laurelhill.com.
The Letter of Transmittal is to be used by registered
Shareholders only and is NOT to be used by Beneficial
Shareholders. A Beneficial Shareholder does not have Common Shares
registered in his, her or its name; rather, such Common Shares are
held by an intermediary or clearing agency such as CDS &
Co. (each, an "Intermediary"). Often, the Intermediary with
whom a Beneficial Shareholder deals with is their banking or other
financial institution or investment broker.
If you are a Beneficial Shareholder, you should contact your
broker or other Intermediary for instructions and assistance in
depositing your Common Shares through a book-entry transfer. In
order to deposit Common Shares to the Offer, Beneficial
Shareholders must complete the documentation and follow the
instructions provided by their investment dealer, broker, nominee,
or other Intermediary. Investment dealers, brokers, nominees and
other Intermediaries may set a deadline for the receipt of deposit
instructions that is earlier than the Expiry Time, and as such
Beneficial Shareholders should contact their investment dealer,
broker, nominee or other Intermediary for assistance in depositing
their Common Shares at their earliest convenience.
Shareholders who have accepted the Tender Offer through a
book-entry transfer will be deemed to have completed and submitted
a Letter of Transmittal and will be bound by the terms thereto.
Only Beneficial Shareholders, through their brokers or other
Intermediaries, may accept the Tender Offer through a book-entry
transfer.
Given the settlement rules of the TSXV, Shareholders who
purchase Common Shares less than two (2) trading days prior to the
Expiry Time should contact their investment dealer, broker or other
Intermediary to confirm if they are eligible to participate in the
Tender Offer.
In accordance with the Letter of Transmittal, each Shareholder
accepting the Tender Offer shall have or be deemed to have:
(i)
|
|
acknowledged receipt of
the Tender Offer and this letter and acknowledged entering into a
binding agreement in respect of the Deposited Common Shares taken
up and paid for between the Shareholder and the Offeror in
accordance with the terms and conditions of the Tender Offer as set
out in this letter and the Letter of Transmittal;
|
(ii)
|
|
transmitted the
Deposited Common Shares for transfer under the Tender
Offer;
|
(iii)
|
|
acknowledged that the
delivery of the Deposited Common Shares shall be effected, and the
risk of loss to such Deposited Common Shares shall pass, only upon
proper receipt thereof by the Depositary and Information
Agent;
|
(iv)
|
|
revoked any and all
authority, other than as granted in the Letter of Transmittal,
whether as agent, attorney, attorney-in-fact, proxy or otherwise,
previously conferred or agreed to be conferred at any time with
respect to the Deposited Common Shares and agreed that no
subsequent authority will be granted with respect to the Deposited
Common Shares, other than as granted in the Letter of Transmittal,
unless the Deposited Common Shares are not taken up and paid for
under the Tender Offer or are properly withdrawn;
|
(v)
|
|
agreed: (a) not to vote
any of the Deposited Common Shares taken up and paid for under the
Tender Offer at any meeting or meetings of holders of relevant
securities of Nickel 28 and not to exercise any other rights or
privileges attached to such Deposited Common Shares, or otherwise
act with respect thereto, (b) to execute and deliver to the
Offeror, at any time, and from time to time, as and when requested
by, and at the expense of, the Offeror, any and all instruments of
proxy, authorizations or consents, in form and on terms
satisfactory to the Offeror, in respect of any such Deposited
Common Shares, and (c) to designate in any such instruments of
proxy, the person or persons specified by the Offeror as the
proxyholder of the Shareholder accepting the Tender Offer in
respect of all or any such Deposited Common Shares;
|
(vi)
|
|
acknowledged and agreed
that, subject to the terms and conditions of the Tender Offer and
except as provided below, by accepting the Tender Offer, the
Shareholder irrevocably assigns to the Offeror, and the Offeror
will thereby acquire, free and clear of all liens, restrictions,
charges, encumbrances, claims, adverse interests, equities and
rights of others, all of the rights and benefits of such
Shareholder in and to the Deposited Common Shares tendered to the
Depositary and Information Agent under the Tender Offer and taken
up and paid for by the Offeror, and in and to all rights and
benefits arising from such Deposited Common Shares, including any
and all dividends, distributions, payments, securities, property
and other interests (collectively, "Distributions" and each
individually a "Distribution"), which may be declared, paid,
accrued, issued, distributed, made or transferred on or in respect
of such Deposited Common Shares, or any of them, on or after the
date of the Tender Offer, including any dividends, distributions or
payments on such Distributions; if, notwithstanding such
assignment, any Distributions are received by or made payable to or
to the order of the Shareholder, then (a) the Offeror will be
entitled to all rights and privileges as the holder of any such
Distribution and such Distribution shall be received and held by
the Shareholder for the account of the Offeror and shall be
promptly remitted and transferred by the Shareholder to the
Depositary and Information Agent for the account of the Offeror,
accompanied by appropriate documentation of transfer, or (b) in its
sole discretion, the Offeror may, in lieu of such remittance or
transfer, reduce the amount of the consideration payable to the
Shareholder under the Tender Offer by deducting an appropriate
amount otherwise payable by the Offeror to the Shareholder pursuant
to the Tender Offer;
|
(vii)
|
|
represented and
warranted that: (a) the Shareholder owns the Deposited Common
Shares and has full power and authority to execute and deliver the
Letter of Transmittal or cause the book-entry transfer to be made
(as applicable) and to deposit, sell, assign and transfer the
Deposited Common Shares (and any associated Distributions), (b)
Deposited Common Shares and associated Distributions have not been
sold, assigned or transferred, nor has any agreement been entered
into to sell, assign or transfer any such Deposited Common Shares
or associated Distributions to any other person, other than under
the Tender Offer, (c) the deposit of the Deposited Common Shares
complies with applicable securities laws, (d) all information
provided by the Shareholder in the Letter of Transmittal is
complete, true and accurate, (e) if the Deposited Common Shares are
taken up and paid for by the Offeror in accordance with the terms
of the Tender Offer, the Offeror will acquire good title thereto
(and to any associated Distributions) free and clear of all liens,
restrictions, charges, encumbrances, claims and rights of others,
(f) the Shareholder is not acting for the account or benefit of a
person from any jurisdiction in which the acceptance of the Tender
Offer would not be in compliance with the laws of such jurisdiction
and is not in, or delivering the Letter of Transmittal from, such a
jurisdiction, (g) the Shareholder is, and will immediately prior to
the date that the Deposited Common Shares are taken up and paid for
(the "Effective Date"), be, the legal owner and
registered holder of the Deposited Common Shares, and (h) the
Shareholder has, and will immediately prior to the Effective Date
have, good title to the rights represented by the certificate(s)
and/or DRS Statement(s) representing its Deposited Common Shares
free and clear of all liens, charges, encumbrances, claims,
security interests and equities, together with all rights and
benefits;
|
(viii)
|
|
agreed that if, on or
after the date of the Tender Offer, Nickel 28 should divide,
combine or otherwise change any of the Common Shares or its
capitalization, or disclose that it has taken or intends to take
any such action, the Offeror, in its sole discretion and without
prejudice to its rights under Section 4 hereof, may make such
adjustments as it considers reasonably appropriate to the Tender
Offer Price and the other terms of the Tender Offer to reflect that
division, combination or other change;
|
(xi)
|
|
surrendered to the
Offeror, effective on and after the Effective Date, all right,
title and interest in and to all of the Deposited Common Shares
evidenced by the certificate(s) and/or DRS Statement(s) transmitted
with the Letter of Transmittal and irrevocably constituted and
appointed, effective on and after the Effective Date, each director
and officer of the Offeror, and any other person designated by the
Offeror in writing, as the true and lawful agent, attorney,
attorney-in-fact and proxy of the holder of Deposited Common Shares
(any such Deposited Common Shares upon being taken up and paid for
are referred to as the "Purchased Common Shares", and
together with any Distributions thereon, the "Purchased
Securities"), with respect to such Purchased Securities, with
full power of substitution and re-substitution (such power of
attorney, being coupled with an interest, being irrevocable), in
the name of and on behalf of the Shareholder:
|
|
(a)
|
to register or record
the transfer and/or cancellation of such Purchased Securities on
the appropriate securities registers maintained by or on behalf of
Nickel 28;
|
|
(b)
|
for as long as any
such Purchased Securities are registered or recorded in the name of
the Shareholder, to exercise any and all rights of such Shareholder
including, without limitation, the right to vote, to execute and
deliver (provided the same is not contrary to laws), as and when
requested by the Offeror, any and all instruments of proxy,
authorizations or consents in form and on terms satisfactory to the
Offeror in respect of any or all Purchased Securities, to revoke
any such instruments, authorizations or consents and to designate
in any such instruments, authorizations or consents any person or
persons as the proxyholder of such Shareholder in respect of such
Purchased Securities for all purposes including, without
limitation, in connection with any Meeting,
|
|
(c)
|
to execute, endorse
and negotiate, for and in the name of and on behalf of the
Shareholder, any and all instruments representing any Distributions
payable to or to the order of, or endorsed in favour of, the
Shareholder,
|
|
(d)
|
to exercise any other
rights of a Shareholder with respect to such Purchased Securities;
and
|
|
(e)
|
to execute all such
further and other documents, transfers or other assurances as may
be necessary or desirable in the sole judgment of the Offeror to
effectively convey such Purchased Securities to the
Offeror;
|
*
|
|
in respect of any
Meeting for which a record date for the determination of
Shareholders entitled to receive notice of, and/or to vote at such
Meeting has been fixed prior to the date that the transfer of
Purchased Securities by Pelham LP has been completed, irrevocably
appointed as its proxy and attorney-in-fact, Ned Collery of Pelham
LP and any individual who shall hereafter succeed any such person,
and any other person designated in writing by Pelham LP, each of
them individually, with full power of substitution and
re–substitution, to vote or execute written consents with respect
to the Purchased Common Shares of the Shareholder at any
Meeting;
|
(xi)
|
|
covenanted and agreed
to execute, upon request of the Offeror, any signature guarantees,
additional documents, transfers, and other assurances as may be
necessary or desirable to complete the sale, assignment and
transfer of the Purchased Securities to the Offeror and to give
effect to the covenants of the Shareholder under the terms of the
Tender Offer;
|
(xii)
|
|
acknowledged that the
authority conferred or agreed to be conferred by the Shareholder in
the Letter of Transmittal (including deemed submission in the case
of book-entry transfers) is, to the extent permitted by law,
irrevocable and may be exercised during any subsequent legal
incapacity of the Shareholder and shall, to the extent permitted by
law, survive the death or incapacity, bankruptcy or insolvency of
the Shareholder and all obligations of the Shareholder therein will
be binding upon the heirs, executors, administrators, attorney,
personal representatives, successors and assigns of the
Shareholder;
|
(xiii)
|
|
instructed the Offeror
and the Depositary and Information Agent, upon the Offeror taking
up the Purchased Common Shares, to mail the cheque payable for such
Purchased Common Shares by first class mail, postage prepaid, or to
hold such cheque for pick-up, in accordance with the instructions
given in the Letter of Transmittal;
|
(xiv)
|
|
acknowledged that if
any Deposited Common Shares are not taken up and paid for pursuant
to the Tender Offer for any reason, or if certificates and/or DRS
Statements are submitted for more Common Shares than are tendered,
a certificate or certificates for Common Shares that are not taken
up will be returned (or, where applicable, a new DRS Statement will
be issued), at the Offeror's expense, to the Shareholder following
the Expiry Time or the termination of the Tender Offer;
|
(xv)
|
|
acknowledged that if
more than the maximum number of Common Shares for which the Tender
Offer is made are deposited in accordance with the Tender Offer and
not withdrawn at the time of take up of the Deposited Common
Shares, the Deposited Common Shares to be purchased from each
depositing Shareholder will be determined on a pro rata
basis according to the number of Deposited Common Shares deposited
by each Shareholder, disregarding fractions, by rounding down to
the nearest whole number of Deposited Common Shares;
|
(xvi)
|
|
acknowledged that the
Shareholder will not receive the Tender Offer Price in respect of
the Deposited Common Shares until after the Tender Offer is
completed, the Deposited Common Shares are taken up and paid for by
the Offeror and the certificate(s) and/or DRS Statement(s)
representing the Deposited Common Shares, in proper form for
transfer, together with a duly signed Letter of Transmittal (or a
manually executed facsimile thereof) is (are) received by the
Depositary and Information Agent, together with such additional
documents as the Depositary and Information Agent may require, and
until such certificate(s) and/or DRS Statement(s) is (are)
processed for payment by the Depositary and Information Agent; and
acknowledged that under no circumstance will any amount be payable
or paid by the Offeror or the Depositary and Information Agent by
reason of any delay in transferring any Common Shares taken up
under the Tender Offer;
|
(xvii)
|
|
agreed that all
questions as to validity, form, eligibility, timely receipt and
acceptance and/or withdrawal of any Deposited Common Shares and the
propriety of the completion and execution of the Letter of
Transmittal will be determined by the Offeror at its sole
discretion and that such determination will be final and binding
and acknowledges that: (a) the Offeror reserves the absolute right
to reject any and all deposits of Deposited Common Shares which the
Offeror determines not to be in proper form or which may be
unlawful to accept under the laws of any jurisdiction, (b) the
Offeror reserves the absolute right to waive any defect or
irregularity in the deposit of any Deposited Common Shares, (c)
there shall be no duty or obligation on the Offeror or the
Depositary and Information Agent or any other person to give notice
of any defect or irregularity in any deposit and no liability shall
be incurred by any of them for failure to give such notice, (d) the
Offeror's interpretation of the terms and conditions of the Tender
Offer and the Letter of Transmittal, if made in accordance with
applicable law, shall be final and binding, and (e) the Offeror
reserves the right to permit the Tender Offer to be accepted in a
manner other than as set forth in this letter and the Letter of
Transmittal;
|
(xviii)
|
|
acknowledged that the
Tender Offer is not being made to, nor will deposits be accepted
from or on behalf of, Shareholders in any jurisdiction in which the
making or acceptance thereof would not be in compliance with the
laws of such jurisdiction;
|
(xix)
|
|
acknowledged that the
Offeror and the Depositary and Information Agent may be required to
disclose personal information in respect of the Shareholder and
consents to disclosure of personal information in respect of the
Shareholder to: (a) stock exchange or securities regulatory
authorities, (b) the Depositary and Information Agent, (c) any of
the parties to the Tender Offer, and (d) legal counsel or financial
advisors to any of the parties to the Tender Offer.
|
Pelham LP reserves the right to permit the Tender Offer to be
accepted in a manner other than that set forth above.
Shareholders will not be required to pay any fee or commission
if they accept the Tender Offer by delivering their Common Shares
directly to the Depositary and Information Agent. However, an
Intermediary through which a Beneficial Shareholder owns Common
Shares may charge a fee to tender any such Common Shares on behalf
of the Beneficial Shareholder. Beneficial Shareholders should
consult their Intermediary to determine whether any charge will
apply. Cash payable to a Shareholder in connection with the Tender
Offer will be paid in Canadian dollars.
This document does not constitute an offer or a solicitation to
any person in any jurisdiction in which such offer or solicitation
is unlawful. The Tender Offer is not being made to, nor will
deposits be accepted from, or on behalf of, Shareholders in any
jurisdiction in which the making or acceptance of the Tender Offer
would not be in compliance with the laws of such jurisdiction.
However, Pelham LP or its agents may, in the sole discretion of
Pelham LP, take such action as Pelham LP may deem necessary to
extend the Tender Offer to Shareholders in any such
jurisdiction.
Shareholders should not construe the contents of the Tender
Offer as legal or financial advice and should consult with their
own independent professional advisors as to the relevant legal,
financial or other matters in connection therewith.
3. Time for
Acceptance
The Tender Offer is open for acceptance by Shareholders until
5:00 p.m. (Eastern Time) on
April 25, 2023, or until such later
time that the Tender Offer may be extended or varied, or, in the
event the conditions to the Tender Offer are not met, until the
Tender Offer is withdrawn by Pelham LP, in each case in its sole
and absolute discretion.
4. Conditions to the Tender
Offer
Pelham LP will have the right to extend or vary the Tender Offer
at any time in its sole and absolute discretion. In addition,
Pelham LP will not be required to accept for payment, take up,
purchase or pay for any Deposited Common Shares under the Tender
Offer, unless all of the following conditions are satisfied or
waived by Pelham LP in its sole and absolute discretion at or prior
to the time at which Pelham LP proposes to accept Deposited Common
Shares for take up under the Tender Offer:
(i)
|
if a record date is set
for any Meeting prior to the Effective Date, holders of Deposited
Common Shares must have been the holders of such Common Shares as
of such record date;
|
(ii)
|
no regulatory
approvals, consents, clearances, waivers, permits, reviews, orders,
rulings, decisions and/or exemptions shall be necessary or
desirable to complete the Tender Offer;
|
(iii)
|
there shall not be
threatened, instituted or pending any action, suit or proceeding by
any government or governmental authority or regulatory or
administrative agency in any jurisdiction, or by any other person
in any jurisdiction, before any court or governmental authority or
regulatory or administrative agency in any jurisdiction or
otherwise, (a) challenging or seeking to cease trade, make illegal,
delay or otherwise directly or indirectly restrain or prohibit the
making of the Tender Offer, the acceptance for purchase for some or
all of the Common Shares by the Offeror or otherwise directly or
indirectly relating in any manner to or affecting the Tender Offer,
(b) challenging, or seeking to make illegal, delay or otherwise
directly or indirectly restrain or prohibit the voting of Purchased
Common Shares by the Offeror at any meeting of shareholders of the
Company, or (c) seeking material damages or that otherwise, or in
the sole judgment of Pelham LP, has or may have a material adverse
effect on the Common Shares or the business, income, assets,
liabilities, condition (financial or otherwise), properties,
operations, results of operations or prospects of Nickel 28 or
Pelham LP, or any of their respective subsidiaries, partners or
affiliates, taken as a whole, or has impaired or may materially
impair the contemplated benefits of the Tender Offer to Pelham
LP;
|
(iv)
|
any change or changes
shall not have occurred (or any development shall not have occurred
involving any prospective change or changes) in the business,
assets, liabilities, properties, condition (financial or
otherwise), operations, results of operations or prospects of
Nickel 28 or its subsidiaries or affiliates that, in the sole
judgment of Pelham LP, has or may have material adverse
significance with respect to Nickel 28 or Pelham LP including,
without limitation: (a) the adoption, establishment or entering
into of any new (or material amendment to any existing) employment,
change in control, severance, compensation, benefit or similar
agreement, arrangement or plan with or for one or more of Nickel
28's employees, consultants or directors, or the making of grants
or awards pursuant to any agreements, arrangements or plans to
provide for increased benefits to one or more employees,
consultants or directors of Nickel 28, other than to the extent
required to be made pursuant to any agreement in effect and
publicly disclosed by the Company prior to the date hereof (except,
in each case, as required by law or is otherwise consistent with
past practice and best industry standards), or the making of any
payment or otherwise altering the terms of any outstanding awards
to provide for a payment or other entitlement for employees,
consultants or directors of Nickel 28 that represents a material
increase from that disclosed in Nickel 28's public filings; or (b)
any issuance or proposed issuance of Common Shares or securities
convertible, exercisable or exchangeable into Common Shares, or
other rights to acquire Common Shares (other than pursuant to the
exercise or conversion of securities or rights granted prior to the
date hereof and publicly disclosed by Nickel 28) that is made or
announced by Nickel 28 following the date hereof and that could
result in the issuance or potential issuance of Common Shares at a
price per Common Share less than the "Market Price" on such date
(as such term is defined under the policies of the
TSXV);
|
(v)
|
any take-over bid
(whether or not exempt from securities regulations) or tender or
exchange offer with respect to some or all of the securities of
Nickel 28, or any merger, business combination or acquisition
proposal, disposition of assets, or other similar transaction (or
any amendment thereto or withdrawal thereof) with, in respect of,
or by Nickel 28 or any of its affiliates (other than the Tender
Offer) shall not have been proposed, announced or made by any
individual or entity;
|
(vi)
|
Pelham LP shall not
have determined, in its sole judgment, that there exists any
prohibition at law against Pelham LP making the Tender Offer or
taking up and paying for any Deposited Common Shares and there
having been no determination by any court or securities regulatory
authority that the Tender Offer constitutes a "take-over bid" under
applicable securities laws;
|
(vii)
|
Pelham LP shall not
have become aware of any untrue statement of material fact, or an
omission to state a material fact that is required to be stated or
that is necessary to make a statement not misleading in light of
the circumstances in which it was made and at the date it was made
(after giving effect to all subsequent filings prior to the date of
the Tender Offer in relation to all matters covered in earlier
filings), in any document filed on or behalf of Nickel 28 with any
securities regulatory authority, which Pelham LP shall have
determined, in its reasonable judgment, when considered
individually or in the aggregate, has or could reasonably be
expected to have material adverse significance with respect to
Nickel 28 or Pelham LP; and
|
(viii)
|
Nickel 28 shall not
have entered into a shareholders rights plan or similar agreement
or have undertaken or announced any action which could have a
material adverse impact on the Tender Offer.
|
The foregoing conditions are for the sole benefit of Pelham LP
and may be asserted by Pelham LP regardless of the circumstances
giving rise to any such assertion (including any action or inaction
by Pelham LP or any of its affiliates) or may be waived by Pelham
LP in whole or in part (including with respect to some and not all
Deposited Common Shares) at any time and from time to time, both
before and after the Expiry Time, in its sole discretion, without
prejudice to any other rights which Pelham LP may have.
Any waiver of a condition or the withdrawal of the Tender Offer
by Pelham LP shall be deemed to be effective on the date on which
notice of such waiver or withdrawal is delivered or otherwise
communicated to the Depositary and Information Agent. If the Tender
Offer is withdrawn, Pelham LP shall not be obligated to take up and
pay for any Deposited Common Shares, and the Depositary and
Information Agent will return all Deposited Common Shares to the
parties by whom they were deposited.
The failure by Pelham LP at any time to exercise its rights
under any of the foregoing conditions shall not be deemed a waiver
of any such right; the waiver of any such right with respect to
particular facts and other circumstances shall not be deemed a
waiver with respect to any other facts and circumstances; and each
such right shall be deemed an ongoing right which may be asserted
at any time or from time to time. Any determination by Pelham LP
concerning the events described in this section shall be final and
binding on Pelham LP and all Shareholders.
Pelham LP reserves the absolute right to reject any or all
deposits of Common Shares determined by it in its sole discretion
not to be in proper form or not completed in accordance with the
instructions set forth herein and in the Letter of Transmittal, or
the acceptance for payment of, or payment for, which may, in the
opinion of Pelham LP's counsel, be unlawful under the laws of any
jurisdiction. Pelham LP also reserves the absolute right to waive
any of the conditions of the Tender Offer or any defect or
irregularity in any deposit of Common Shares. For greater
certainty, deposits of Common Shares in respect of which the holder
thereof shall have validly revoked proxies appointing
representatives of Pelham LP, under the terms of the Letter of
Transmittal, as their respective proxy for any meeting of holders
of relevant securities of Nickel 28 (whether annual, special or
otherwise or any adjournment or postponement thereof), shall be
considered to not be in proper form and may be rejected.
5. Withdrawal
Rights
Deposited Common Shares may be withdrawn at any time prior to
any of them being taken up by Pelham LP. For a withdrawal to
be effective, a written or electronic transmission notice of
withdrawal must be received in a timely manner by the Depositary
and Information Agent at the place of deposit of the relevant
Deposited Common Shares. Any such notice of withdrawal must (a) be
made by a method, including a manually signed electronic
transmission (other than in the case of a book-entry transfer),
that provides the Depositary and Information Agent with a written
or printed copy; (b) be signed by or on behalf of the person who
signed the Letter of Transmittal that accompanied the Deposited
Common Shares or DRS Statement(s) to be withdrawn; and (c) specify
the number of Deposited Common Shares to be withdrawn and the name
of the registered holder shown on the share certificate(s) or DRS
Statement(s) representing such Deposited Common Shares to be
withdrawn. No signature guarantee is required on a notice of
withdrawal if the notice of withdrawal is signed by the registered
holder of the Deposited Common Shares exactly as the name of the
registered holder appears on the certificate(s) or DRS Statement(s)
representing Deposited Common Shares deposited or if the
certificate(s) or DRS Statement(s) were deposited for the account
of an Eligible Institution (as defined in the Letter of
Transmittal). In all other cases, the signature on a notice of
withdrawal must be guaranteed by an Eligible Institution. A
withdrawal of Deposited Shares can only be accomplished in
accordance with the foregoing procedure. The withdrawal will take
effect only upon actual receipt by the Depositary and Information
Agent of the properly completed and executed written or electronic
notice of withdrawal.
Except as otherwise provided herein, all deposits of Deposited
Common Shares will be irrevocable. Unless otherwise required or
permitted by applicable law, any Deposited Common Shares may be
withdrawn by or on behalf of the depositing Shareholder at any time
before such Deposited Common Shares are taken up by the
Offeror.
All questions as to form and validity (including, without
limitation, time of receipt) of notices of withdrawal shall be
determined by Pelham LP in its sole discretion and such
determination shall be final and binding. There shall be no duty or
obligation on Pelham LP, the Depositary and Information Agent or
any other person to give notice of any defect or irregularity in
any notice of withdrawal and no liability shall be incurred by any
of them for failure to give such notice.
Any Common Shares properly withdrawn will thereafter be deemed
not validly deposited for the purposes of the Tender Offer.
However, withdrawn Common Shares may be re-deposited at any
subsequent time prior to the Expiry Time by again following the
procedures described in Section 2 hereof.
Subject to applicable law and the terms and conditions herein,
if the Offeror extends the period of time during which the Offer is
open, is delayed in taking up or paying for the Deposited Units or
is unable to take up or pay for the Deposited Units for any reason,
then, without prejudice to the Offeror's other rights under the
Offer, the Depositary and Information Agent may retain on behalf of
the Offeror all Deposited Units, and such Deposited Units may not
be withdrawn except to the extent that depositing Shareholders are
entitled to withdrawal rights as set forth herein or pursuant to
applicable law.
6. Who May Accept
The Tender Offer is open for acceptance by all registered and
beneficial holders of Common Shares.
7. Take Up of Common
Shares
If more than the maximum number of Common Shares for which the
Tender Offer is made are deposited in accordance with the Tender
Offer and not withdrawn at the time of take up of the Deposited
Common Shares, the Deposited Common Shares to be purchased from
each depositing Shareholder will be determined on a pro rata
basis according to the number of Deposited Common Shares deposited
by each Shareholder, disregarding fractions, by rounding down to
the nearest whole number of Deposited Common Shares. If the
conditions of the Tender Offer are satisfied or waived by the
Offeror, the Offeror will take up all Deposited Common Shares (or
if more than 10,000,000 Deposited Common Shares are tendered,
proportionately take up Deposited Common Shares in accordance with
the provisions of the Tender Offer) and will pay for such Deposited
Common Shares taken up as soon as possible but no later than three
(3) business days after such Deposited Common Shares are taken
up.
8. Extension, Variation or
Withdrawal of the Tender Offer
The Tender Offer is open for acceptance up to and including, but
not after, the Expiry Time.
Pelham LP expressly reserves the right, in its sole discretion,
at any time and from time to time while the Tender Offer is open
for acceptance, to: (i) vary the Tender Offer; or (ii) extend the
period of time during which the Tender Offer is open, in each case,
by giving written or oral notice to be confirmed in writing of
variation or extension to the Depositary and Information Agent. Any
notice of variation or extension will be deemed to have been given
and to be effective on the day on which it is delivered or
otherwise communicated to the Depositary and Information Agent at
its principal office in Toronto, Ontario,
Canada.
Pelham LP also expressly reserves the right, in its sole
discretion, to withdraw the Tender Offer if the conditions thereto
are not met and, if withdrawn, Pelham LP will not be required to
take up or pay for any Common Shares delivered pursuant to the
Tender Offer. If the Tender Offer is withdrawn by Pelham LP, Pelham
LP shall cause all Common Shares delivered to be returned to the
Shareholders.
The Offeror will, as soon as possible after giving notice of a
variation or extension to the Depositary and Information Agent, or
after withdrawing the Tender Offer in accordance with this letter,
issue a press release announcing the terms of such variation,
extension or withdrawal.
9. Changes in
Capitalization, Encumbrances, Distributions
If, on or after the date of the Tender Offer, Nickel 28 should
divide, combine or otherwise change any of the Common Shares or its
capitalization, or disclose that it has taken or intends to take
any such action, the Offeror, in its sole discretion and without
prejudice to its rights under Section 4 hereof, may make such
adjustments as it considers reasonably appropriate to the Tender
Offer Price and the other terms of the Tender Offer (including the
type of securities offered to be purchased and the amounts payable
therefor) to reflect that division, combination or other
change.
10. Other Information
Pelham LP is relying on the exemption under section 9.2(4) of
National Instrument 51-102 – Continuous Disclosure
Obligation to make a public broadcast solicitation of proxies.
The following information is provided in accordance with corporate
and securities laws applicable to public broadcast exemptions.
This solicitation is being made by Pelham LP, and not by or on
behalf of management of Nickel 28. Laurel Hill Advisory Group will
receive a fee of $87,500 for its
services as Depositary and Information Agent under the Offer plus
ancillary payments and disbursements. Based upon publicly available
information, Nickel 28's registered office is at 666 Burrard
Street, Suite 1700, Vancouver, British
Columbia V6C 2X8, Canada
and its head office is located at 155 University Ave., Suite 1240,
Toronto, Ontario M5H 3B7,
Canada. Pelham LP is soliciting
proxies in reliance upon the public broadcast exemption to the
solicitation requirements under applicable Canadian corporate and
securities laws, conveyed by way of public broadcast, including
press release, speech or publication, and by any other manner
permitted under applicable Canadian laws. In addition, the
solicitation may be made by mail, telephone, facsimile, email or
other electronic means as well as by newspaper or other media
advertising and in person by employees of Pelham LP. Subject to any
rights of reimbursement that may become available to Pelham LP, all
costs incurred for the solicitation of proxies by or on behalf of
Pelham LP will be borne by Pelham LP.
A registered Shareholder who has given a proxy under the terms
of the Letter of Transmittal may, prior to its Deposited Common
Shares being taken up and paid for under the Tender Offer, revoke
the proxy by instrument in writing, including a proxy bearing a
later date. The instrument revoking the proxy must be deposited at
the registered office of Nickel 28 at any time up to and including
the last business day preceding the date of the meeting or an
adjournment or postponement thereof, or with the Chair of the
meeting on the day of the meeting, or in any other manner permitted
by law, provided that, in each circumstance, a copy of such
revocation has been delivered to the Depositary and Information
Agent at its principal office in Toronto,
Ontario, Canada prior to the Common Shares relating to such
proxy having been taken up and paid for under the Offer. A
Beneficial Shareholder may revoke a form of proxy or voting
instruction form given to an Intermediary at any time by written
notice to the Intermediary in accordance with the instructions
given to the Beneficial Shareholder by its Intermediary. Beneficial
Shareholders should contact their broker for assistance in ensuring
that forms of proxies or voting instructions previously given to an
Intermediary are properly revoked. None of Pelham LP nor, to its
knowledge, any of its associates or affiliates, has any material
interest, direct or indirect, in any transaction since the
commencement of Nickel 28's most recently completed financial year,
or in any proposed transaction which has materially affected or
will materially affect Nickel 28 or any of its subsidiaries. None
of Pelham LP nor, to its knowledge, any of its associates or
affiliates, has any material interest, direct or indirect, by way
of beneficial ownership of securities or otherwise, in any matter
to be acted upon at any upcoming shareholders' meeting, other than
as set out herein.
11. Applicable Law
The Tender Offer shall be construed and enforced in connection
with, and the rights of the parties shall be governed by, the laws
of the Province of Ontario and the
laws of Canada applicable
therein.
12. Language
Each of Pelham LP and the Shareholder acknowledges that it has
consented and requested that all documents evidencing or relating
in any way to this Tender Offer be drawn up in the English language
only. Pelham LP et le porteur de parts reconnaissent par les
présentes avoir consenti et demandé à ce que
tous les documents attestant ou se rapportant de quelque manière
que ce soit à la présente offre d'achat avec prime visant un petit
pourcentage de parts soient rédigés en anglais seulement.
The Depositary and Information Agent for the
Tender Offer is:
LAUREL HILL ADVISORY GROUP
FOR SHAREHOLDER INQUIRIES
North
American Toll Free: 1-877-452-7184
Outside North America: 1-416-304-0211
Email:
assistance@laurelhill.com
FOR DEPOSITING SHARES
Email:
inquiries@laurelhill.com
Facsimile:
1-416-646-2415
By Mail:
PO Box 370 STN Adelaide Toronto, Ontario M5C 2J5 Canada
By Registered Mail or By Courier:
70
University Avenue, Suite 1440 Toronto,
Ontario M5J 2M4 Canada
Questions or requests for assistance may be
directed to the Depositary and Information Agent at its telephone
number and location set out above.
To keep up-to-date, please visit:
www.nickel28offer.com
SOURCE Pelham