GE11; I may have said non performance fee, but was referring to the Termination fee. I think the Termination fee covers non performance as well as mutual agreement. I was relying on something someone posted previously. I went out to Sedar to confirm what was said. There are 192 pages and it was a small mercy that page 5 discusses Termination and the Termination fee. (I did not see what would happen if the Shareholders on either side did not approve of the deal....)
Click Here: Sedar NioCorp Sept 29
Termination
The Business Combination Agreement may be terminated by NioCorp or GXII under certain circumstances,
including, among others, (i) if NioCorp and GXII provide mutual written consent; (ii) by either NioCorp or GXII if,
prior to the Closing, the Transaction is enjoined, prohibited or otherwise restrained by the terms of a final, non-
appealable Order of a Governmental Entity of competent jurisdiction (provided, however, that the right to terminate
the Business Combination Agreement under the clause described in this clause (ii) will not be available to a party
whose breach of any provision of the Business Combination Agreement results in or materially contributes to
causing such Order to be issued or the failure of the Order to be removed); (iii) by either NioCorp or GXII if the
Closing does not occur on or before March 22, 2023, subject to certain extensions as permitted under the Business
Combination Agreement (provided, however, that the right to terminate the Business Combination Agreement under
the clause described in this clause (iii) will not be available to a party whose breach of any provision of the Business
Combination Agreement results in or materially contributes to causing the Closing to fail to occur prior to March 22,
2023, subject to certain extensions as permitted under the Business Combination Agreement); (iv) by either NioCorp
or GXII if the Company Shareholder Approval is not obtained at the Company Shareholder Meeting; (v) by either
NioCorp or GXII if the GX Shareholder Approval is not obtained at the GX Shareholder Meeting; (vi) by NioCorp
if GXII breaches any representation, warranty or covenant made by it in the Business Combination Agreement such
that the conditions regarding the truth, completeness and correctness of the representations and warranties made by
GXII and the performance by GXII of its covenants are not fulfilled as provided therein, subject to GXII’s cure right
set forth therein; (vii) by NioCorp in order to enter into a definitive agreement providing for a Superior Proposal;
(viii) by GXII if NioCorp or Merger Sub breaches any representation, warranty or covenant made by it in the
Business Combination Agreement such that the conditions regarding the truth, completeness and correctness of the
representations and warranties made by NioCorp and the performance by NioCorp and Merger Sub of their
covenants are not fulfilled as provided therein, subject to NioCorp’s cure right set forth therein; or (ix) by GXII in
the event of a change of recommendation by the board of directors of NioCorp (the “NioCorp Board”) or the failure
of the NioCorp Board to publicly reaffirm its recommendation of the Business Combination Agreement and the
Transaction.
Termination Fee
The Business Combination Agreement provides that, upon termination of the Business Combination Agreement in
specified circumstances, NioCorp must pay GXII a termination fee of $15,000,000 (the “Base Termination Fee”).
Such specified circumstances include, among others, termination of the Business Combination Agreement by
NioCorp in order to enter into an agreement providing for a Superior Proposal, termination by GXII for a change of
recommendation of the NioCorp Board, or a material breach of certain of NioCorp’s covenants relating to soliciting
acquisition proposals.
In addition, the Business Combination Agreement provides that, upon termination of the Business Combination
Agreement in specified circumstances, NioCorp is required to pay a termination fee in the amount of $25,000,000
(the “Intentional Breach Termination Fee”). Such specified circumstances include, among others, termination by
GXII as a result of a willful and material breach by NioCorp such that certain conditions to Closing would not be
satisfied at Closing (subject to a cure period), or as a result of NioCorp’s failure to consummate the closing of the
Transaction within five business days after all the conditions to Closing have been satisfied and GXII has
irrevocably confirmed in writing that it is prepared to consummate the Closing.
In addition, the Business Combination Agreement provides that, upon a termination of the Business Combination
Agreement whereupon GXII will be entitled to the Base Termination Fee or the Intentional Breach Termination Fee,
NioCorp is also required to pay an amount equal to the sum of all documented and reasonable out-of-pocket
expenses paid or payable by GXII and the Sponsor in connection with the Business Combination Agreement and the
Transaction, not to exceed $5,000,000.
