Exhibit 4.9
JOINDER
THIS JOINDER (this “Joinder”) to the Exchange Agreement, dated as of March 17, 2023 (the “Agreement”), by and among GX Sponsor II LLC, a Delaware limited liability company (“Sponsor Holdco”), Elk Creek Resources Corp. (f/k/a GX Acquisition Corp. II), a Delaware corporation (“GX”), and NioCorp Developments Ltd., a company incorporated under the laws of the Province of British Columbia (the “Company”), is made and entered into as of March 17, 2023, but subsequent to the execution of the Agreement, by the undersigned (the “Holder”), and acknowledged and agreed by the Company and GX. Capitalized terms used herein but not otherwise defined shall have the respective meanings ascribed thereto in the Agreement.
WHEREAS, (a) the Sponsor Holdco is distributing certain shares of GX Class B Common Stock held by the Sponsor Holdco (the “Transferred Class B Shares”) to the Holder as a Permitted Transferee and, in connection therewith, is assigning to the Holder the Sponsor Holdco’s rights and obligations under the Agreement with respect to the Transferred Class B Shares in accordance with the terms of the Agreement, (b) the Agreement requires that the Holder, as a condition to any such assignment, become a party to the Agreement as an Exchanging Shareholder by executing a Joinder Agreement, and (c) the Holder agrees to do so in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Joinder hereby agree as follows:
1. Agreement to be Bound. The Holder hereby agrees that upon execution of this Joinder, it shall become a party to the Agreement and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Agreement applicable to the Sponsor Holdco as though an original party thereto.
2. Notices. For purposes of Section 7.10 of the Agreement, all notices, demands or other communications to the Holder shall be directed to the address of the Holder set forth on the signature page hereto.
3. Governing Law. This Joinder will be construed and enforced in accordance with the laws of the State of Delaware, without regard to the conflict of laws principles that would result in the application of any law other than the law of the State of Delaware.
4. Counterparts. This Joinder may be executed in any number of counterparts (including by pdf or other readable electronic format), each such counterpart being deemed to be an original instrument, with the same effect as if the signature thereto and hereto were upon the same instrument, and will become effective when one or more counterparts have been signed by each of the parties and delivered (including by email or DocuSign) to the other parties, and all such counterparts will together constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
By: /s/ Michael G. Maselli
Name: Michael G. Maselli
ADDRESS:
34 Rockledge Drive
Pelham Manor, NY 10803
Attention: Michael G. Maselli
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
AJA PARTNERS LLC
By: /s/ Leon Wagner
Name: Leon Wagner
Title: Manager
ADDRESS:
[***]
Attention: Leon Wagner
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
By: /s/ Dean C. Kehler
Name: Dean C. Kehler
ADDRESS:
[***]
Attention: Dean C. Kehler
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
By: /s/ Andrea J. Kellett
Name: Andrea J. Kellett
Title:
ADDRESS:
36 Stillwater Avenue
Massapequa, NY 11758
Attention: Andrea J. Kellett
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
By: /s/ Marc Mazur
Name: Marc Mazur
ADDRESS:
40 Beech Tree Lane
Pelham Manor, NY 10803
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
By: /s/ James Harpel
Name: James Harpel
ADDRESS:
1100 South Flagler Drive, Unit 1204
West Palm Beach, FL 33401
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
By: /s/ Arthur Baer
Name: Arthur Baer
ADDRESS:
30 W. 63rd Street, Apt. 3J
New York, NY 10023
Attention: Arthur Baer
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
EQUITY TRUST COMPANY CUSTODIAN
FBO ARTHUR D. BAER ROTH IRA
By: /s/ Arthur Baer
Name: Arthur Baer
Title: Authorized Signatory
ADDRESS:
30 W. 63rd Street, Apt. 3J
New York, NY 10023
Attention: Arthur Baer
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
ELIZABETH KEHLER 2012 TRUST
By: /s/ Dean C. Kehler
Name: Dean C. Kehler, Co-Trustee
Title: Authorized Signatory
ADDRESS:
[***]
Attention: Dean C. Kehler
Email:
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
By: /s/ Jordan S. Bloom
Name: Jordan S. Bloom
ADDRESS:
1300 Monad Terrace, Apt. 10D
Miami Beach, Florida 33129
Attention: Jordan S. Bloom
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
COOPER ROAD ACQUISITION, LLC
By: /s/ Jordan S. Bloom
Name: Jordan S. Bloom
Title: Sole Member
ADDRESS:
101 20th Street, Unit 2501
Miami Beach, Florida 33129
Attention: Jordan S. Bloom
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
COOPER ROAD, LLC
By: /s/ Jay R. Bloom
Name: Jay R. Bloom
Title: Managing Member
ADDRESS:
101 20th Street, Unit 2501
Miami Beach, FL 33129
Attention: Jay R. Bloom
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
IN WITNESS WHEREOF, the parties hereto have entered into this Joinder or have caused this Joinder to be executed as of the date first written above by their respective officers thereunto duly authorized.
HW 2015 TRUST U/A 7/23/15
By: /s/ Elaine Weinberger
Name: Elaine Weinberger, Trustee
Title: Authorized Signatory
ADDRESS:
591 Winthrop Road
Teaneck, NJ 07666
Attention: Elaine Weinberger
Email: [***]
[Signature Page to Joinder to Exchange Agreement]
Acknowledged and Agreed:
NIOCORP DEVELOPMENTS LTD.
By: /s/ Mark Smith
Name: Mark Smith
Title: Chief Executive Officer
ELK CREEK RESOURCES CORP.
By: /s/ Neal Shah
Name: Neal Shah
Title: Treasurer and Secretary
[Signature Page to Joinder to Exchange Agreement]
