NOVONIX Limited The party described as the Investor in Schedule 1 Unsecured Convertible Note Agreement

 

EXHIBIT 4.12

 

 

 

 

 

 

 

 

 

 

 

NOVONIX Limited

The party described as the Investor in Schedule 1

 

 

 

 

 

 

 

Unsecured Convertible Note Agreement

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	Contents
	1	Definitions and interpretation		1
		1.1	Definitions	1
		1.2	Interpretation	4
		1.3	Statements on the basis of knowledge or belief	5
	2	Conditions Precedent		5
		2.1	Conditions Precedent	5
		2.2	Parties must co-operate	5
		2.3	Specific obligations of cooperation	5
		2.4	Waiver	6
		2.5	Failure of Conditions Precedent	6
	3	Subscription		6
		3.1	Subscription requirements	6
		3.2	Issue of Convertible Notes	6
	4	General terms of issue		6
		4.1	Convertible Notes	6
		4.2	Adjustments	7
		4.3	No shareholder rights	7
		4.4	Consultation Right	7
	5	Interest		7
		5.1	Interest	7
		5.2	Gross up	8
	6	Actions on Maturity Date		8
	7	Payments		8
		7.1	Payment manner	8
		7.2	Payment dates	8
	8	Conversion		8
		8.1	General Restriction	9
		8.2	Conversion right	9
		8.3	Issuer to procure quotation	10
	9	Convertible Note Certificates		10
		9.1	On conversion	10
		9.2	Loss or destruction	10
	10	Cancellation of Convertible Note		11
	11	Obligations of Issuer		11
		11.1	Restrictions on the Issuer	11
		11.2	Positive undertakings	11
	12	Representations		11
		12.1	Issuer Warranties	11
		12.2	Investor Warranties	13
		12.3	Survival and independence	13
		12.4	Reliance	14
	13	Default and Early Redemption		14
		13.1	Events of Default	14
		13.2	Consequences of default	14
	14	GST		15

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		14.1	Definitions	15
		14.2	Consideration is GST exclusive	15
		14.3	Payment of GST	15
		14.4	Reimbursement of expenses	15
		14.5	No GST	15
	15	General		15
		15.1	Confidentiality	15
		15.2	Entire Agreement	16
		15.3	Further assurances	16
		15.4	No waiver	16
		15.5	Severability	16
		15.6	Successors and assigns	16
		15.7	No assignment	16
		15.8	Consents and approvals	16
		15.9	Amendment	17
		15.10	Costs	17
		15.11	Governing law and jurisdiction	17
		15.12	Electronic signatures	17
		15.13	Notices	17
		15.14	Counterparts	19
		15.15	No right of set-off	19
		15.16	Relationship of parties	19
	Schedule 1			20
		Party Details		20
	Schedule 2			21
		Convertible Note Certificate		21

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This Agreement is made on the 7th day of June, 2023

Parties

 

Recitals

 

 

It is agreed as follows.

 

In this Agreement:

Aggregate Amount has the meaning given to that term in Schedule 1.

ASIC means the Australian Securities and Investments Commission.

ASIC Instrument 2016/82 means the "ASIC Corporations (Sale Offers: Securities issued on Conversion of Convertible Notes) Instrument 2016/82" made under sections 741 and 1020F of the Corporations Act.

Associates has the meaning given to that term in the Corporations Act.

ASX means the Australian Securities Exchange operated by ASX Limited (ABN 98 008 624 691).

Authorisation includes any authorisation, approval, consent, licence, permit, franchise, permission, filing, registration, resolution, direction, declaration, or exemption.

Board means the board of directors of the Issuer.

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Sydney, Australia, Brisbane, Australia, or Seoul, Korea.

Claim includes a claim, notice, demand, action, proceeding, litigation, arbitration, alternative dispute resolution proceedings, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.

Conditions Precedent has the meaning given to that term in clause 2.1.

Conditions Precedent End Date means the date that is two months after the date of this Agreement, or any other date agreed by the parties in writing.

Controller has the meaning it has in the Corporations Act.

Conversion Amount means, in respect of a Convertible Note, the aggregate of:

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Conversion Date means, in respect of a Convertible Note, the date on which the Investor delivers a Conversion Notice to the Issuer.

Conversion Notice means a notice which the Investor delivers to the Issuer under clause 8.2(a).

Conversion Price means AUD $1.6 per Share, as adjusted by clause 4.2, if applicable.

Convertible Note means an interest-bearing redeemable unsecured convertible note issued by the Issuer to the Investor on the conditions set out in this Agreement and evidenced by a Convertible Note Certificate.

Convertible Note Certificate means a convertible note certificate substantially in the form set out in Schedule 2.

Corporations Act means the Corporations Act 2001 (Cth).

Determined Exchange Rate means, at the Investor’s option, either:

Employee means an employee of a Group Member subject to an employment or services agreement with a Group Member as at the date of this Agreement.

Exchange Rate means, in respect of a date, the rate of exchange for the conversion of AUD$ to USD$ as published by REUTERS as at 11:00 a.m. (Sydney Time) on such date as set forth in the “Currencies” page (Currency Market Headlines | Breaking Stock Market News | Reuters). If those rates are not displayed for any reason, the rate will be as reasonably defined by the Investor by reference to any such other page as may replace that page or an equivalent market index for the purpose of displaying such exchange rate.

Face Value means in respect of a Convertible Note, AUD $1.00.

Final Conversion Date means the date on which the first purchase order for the Products under the Purchase Agreement is issued and accepted.

Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.

Group means the Issuer and each of its Related Bodies Corporate.

Group Member means any member of the Group. A person is Insolvent if:

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Interest Rate means, subject to clause 5.1(a):

Investor Warranties means the warranties given by the Investor to the Issuer as set out in clause 12.2.

Issue means the issue of the Convertible Notes to the Investor in accordance with clause 3.

Issue Date means the tenth Business Day after the Conditions Precedent are fulfilled or waived, unless otherwise agreed by the parties in writing.

Issuer Warranties means the warranties given by the Issuer to the Investor as set out in clause 12.1.

Joint Development Agreement means the joint development agreement between the Issuer and the Investor (or their respective Related Bodies Corporate) to be entered into on or around the date of this Agreement.

Listing Rules means the Listing Rules of the ASX, from time to time in force and applicable to the Issuer.

Maturity Date means the date that is 5 years after the date of this Agreement, or any other later date agreed in writing between the Investor and the Issuer.

Principal Amount means in respect of the Investor the aggregate Face Value of all Convertible Notes issued to the Investor, as reduced by any conversion, repayment, prepayment, redemption or cancellation in accordance with this Agreement.

Product has the meaning given to that term in the Joint Development Agreement.

Purchase Agreement has the meaning given to that term in the Joint Development Agreement.

Related Body Corporate has the meaning given to that term in the Corporations Act, but disregarding section 48(2) of the Corporations Act in respect of shares held or powers exercisable by any body corporate acting as trustee of a trust where those unitholders or beneficiaries of that trust that are entitled to a majority of the distributions from the trust control the corporate trustee.

Relevant Interest has the meaning given to that term in the Corporations Act.

Share means a fully paid ordinary share in the capital of the Issuer, having all of the rights set out in the Issuer's constitution.

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Tax all forms of present and future taxes, excise, stamp or other duties, imposts, deductions, charges, withholdings, rates, levies or other governmental impositions imposed, assessed or charged by any Government Agency, together with all interest, penalties, fines, expenses and other additional statutory charges relating to any of them, imposed or withheld by a Government Agency.

Trading Day means a day on which the ASX is open for trading but does not include any period of up to 2 consecutive days where the Issuer is in a trading halt.

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Any statement made by a party on the basis of its knowledge and belief or awareness is made on the basis that the party has, in order to establish that the statement is true and not misleading in any respect:

and that, as a result of those inquiries, the party has no reason to doubt that the statement is true and not misleading in any respect.

The issue of the Convertible Notes under the terms of this Agreement is conditional on the Issuer having delivered to the Investor a written confirmation from an authorised representative of the Issuer confirming:

(the Conditions Precedent).

Each party must cooperate with the other and do all things reasonably necessary to procure that the Conditions Precedent are fulfilled as soon as reasonably practicable, and in any event on or before the Conditions Precedent End Date.

Without limiting the generality of clause 2.2:

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The Conditions Precedent can only be waived by the written agreement of the Issuer and the Investor.

Subject to the satisfaction or waiver of the Conditions Precedent, the Investor agrees to:

Subject to the Issuer having received the Aggregate Amount from the Investor in accordance with clause 3.1(b), the Issuer must, on the Issue Date:

Subject to this Agreement and the Listing Rules, Convertible Notes issued to the Investor:

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If the Issuer reorganises or reconstructs its capital (including consolidation, subdivision, reduction or return) at any time when there is a Principal Amount outstanding to the Investor, then the Conversion Price, number of Shares to be issued on conversion and/or Convertible Notes will be amended to the extent applicable and, subject to the Listing Rules, to place that Investor in substantially the same position as it would have been had no such event occurred.

Unless converted into a Share in accordance with this Agreement, Convertible Notes do not confer on the Investor (in its capacity as a holder of Convertible Notes) any entitlement to:

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If the Issuer is required by law to deduct or withhold Taxes from any payment under this clause 5, it must:

 

The Issuer must make all payments to the Investor required under this Agreement:

Any payment by the Issuer required under this Agreement falling due on a day which is not a Business Day must be made on the immediately following Business Day.

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The Investor agrees not to convert any Convertible Notes to the extent that that would result in the Investor and its Associates holding a Relevant Interest in more than 19.99% of the issued Shares (or such other limit prescribed by section 606(1)(c)(i) of the Corporations Act from time to time), except to the extent permitted under section 611 of the Corporations Act.

 

	Number of Shares =		Specified Conversion Amount
			Conversion Price

 

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On each occasion which the Investor delivers a Conversion Notice to the Issuer, that Investor must also deliver or procure the delivery of the related Convertible Note Certificate. To the extent that the Investor on any occasion does not convert all of the Convertible Notes to which a Convertible Note Certificate relates, the Issuer must issue and deliver a replacement Convertible Note Certificate for the balance to the Investor on the date on which it issues the Shares resulting from the conversion.

If a Convertible Note Certificate is lost or destroyed, then:

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a new Convertible Note Certificate will be sent to the Investor. The Investor indemnifies the Issuer for any loss, cost, damage or expense suffered by the Issuer as a result of the Convertible Note Certificate being lost, destroyed or replaced.

A Convertible Note is automatically cancelled on conversion or redemption in full and will not be re-issued.

From the date of this Agreement to the conversion or redemption in full of the Convertible Notes the Issuer must not without the prior written consent of the Investor:

From the date of this Agreement to the conversion or redemption in full of the Convertible Notes, the Issuer must:

 

Except to the extent disclosed by the Issuer as an announcement on the ASX prior to the date of this Agreement or, disclosed to the Investor in writing prior to the date of this Agreement, the Issuer warrants and represents to and for the benefit of the Investor that as at the date of this Agreement and the Issue Date:

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this Agreement. On the Issue Date, full beneficial title in the Convertible Notes issued pursuant to clause 3.2 will vest in the Investor;

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The Investor warrants and represents to and for the benefit of the Issuer that as at the date of this Agreement:

The Issuer Warranties and Investor Warranties survive the execution and completion of this Agreement. Each Issuer Warranty and Investor Warranty is separate and independent and not

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limited by reference to any other Issuer Warranty or Investor Warranty or any notice or waiver given by any party in connection with anything in this Agreement.

The following are Events of Default:

If an Event of Default occurs and continues unremedied for a period of 30 calendar days, the Investor may declare at any time by notice to the Issuer that:

and the Issuer must redeem all the Convertible Notes on issue for the Investor by paying to the Investor in USD an amount equal to the USD$ equivalent (at the Determined Exchange Rate) of the Default Payment Amount;

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The making of such declaration gives immediate effect to its provisions.

 

In this clause 14:

Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.

If this Agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:

such that after the Other Party meets the GST liability, it retains the Net Amount.

The parties are contracting on the understanding that GST is not applicable to the transactions undertaken pursuant to this Agreement.

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anyone (other than their professional advisors) without first obtaining the prior written consent of the other party provided that nothing in this Agreement restricts either party from complying with its obligations at law or under the Listing Rules.

This Agreement contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. Neither party has relied on or is relying on any other Conduct in entering into this Agreement and completing the transactions contemplated by it.

Each party must do anything necessary or desirable (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

This Agreement binds and benefits the parties and their respective successors and permitted assigns.

Neither party can assign, charge, create a security interest over, encumber or otherwise deal with any of its rights or obligations under this Agreement, or attempt or purport to do so, without the prior written consent of the other party.

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Where anything depends on the consent or approval of a party then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that party.

This Agreement may be amended only by another agreement executed by all the parties.

Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement. All duty (including any fines, penalties and interest) payable on or in connection with this Agreement and any instrument executed under or any transaction evidenced by this Agreement must be borne equally by the parties.

This Agreement is governed by the laws of Queensland. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore, and the tribunal shall consist of 3 arbitrators. The language of the arbitration shall be English.

and each party is estopped from asserting otherwise.

Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:

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address or email address most recently notified by the intended recipient to the sender. Until further notice, that recipient, address and email address is as below:

 

(i)	to the Issuer:	Address: Level ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
		Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ a copy to: Address: Level ▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
(ii)	to the Investor:	Address: Parc. ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇-▇▇▇▇▇,
		Yeongdeungpo-gu, Seoul, 07335, the Republic of Korea Email: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ Attention: Youngseop Kwon and Email: ▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇.▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇

 

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but if the result is that a Notice would be taken to be given or madeand received:

in the place specified by the intended recipient as its postal address under paragraph (b), it will be conclusively taken to have been duly given or ▇▇▇▇▇▇▇ received at the start of business on the next business day in that place.

Unless this Agreement expressly provides otherwise, a party has no right of set-off against a payment due to another party.

Unless this Agreement expressly provides otherwise, nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary.

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Schedule 1

Party Details

 

Investor	Notice Details
LG Energy Solution, Ltd	Parc. ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇- ▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Aggregate Amount	USD$ 30 million

 

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Schedule 2

Convertible Note Certificate

 

NOVONIX Limited

ACN 157 690 830

(Issuer)

CONVERTIBLE NOTE CERTIFICATE

This is to certify that

[*]

is the registered holder of [No. of Notes] Convertible Notes issued by the Issuer having an aggregate Principal Amount of AUD $[*] on and subject to the terms and conditions contained in the Convertible Note Agreement dated [*].

Dated:

 

 

Executed by NOVONIX Limited (ACN 157 690

830) in accordance with section 127 of the

Corporations Act 2001 (Cth):

 

 

 

	Signature of director		Signature of director / company secretary

 

 

 

	Print Name		Print Name

 

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Executed as an Agreement.
Signed on behalf of NOVONIX Limited (ACN 157 690 830) by its authorised representative:
▇▇▇▇▇ ▇▇▇▇▇
Print Name
CEO
Title

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Executed as an Agreement

Signed on behalf of LG Energy Solution, ▇▇▇. ▇▇ its authorised representative:

Signature

▇▇▇▇ ▇▇▇▇▇▇▇▇

Print Name

CEO

Title

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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