| As filed with the Securities and Exchange Commission on April 14, 2023 |
| Registration No. 333- |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NioCorp Developments Ltd.
(Exact name of registrant as specified in its
charter)
| British
Columbia, Canada |
|
98-1262185 |
(State
or other jurisdiction
of incorporation or organization) |
|
(IRS
Employer Identification No.) |
7000 South Yosemite Street, Suite 115
Centennial, Colorado 80112
Tel: (855) 264-6267
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
CT Corporation System
111 Eighth Avenue
13th Floor
New York, New York 10011
Tel: (800) 624-0909
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies of all communications, including communications
sent to agent for service, should be sent to:
| |
Christopher M. Kelly
Joel T. May
Andrew C. Thomas
Jones Day
1221 Peachtree Street, N.E.
Suite 400
Atlanta, Georgia 30361
(404) 581-8967 |
Bob Wooder
Kyle Misewich
Blake, Cassels & Graydon LLP
595 Burrard Street
Suite 2600
Vancouver, British Columbia
V7X 1L3 |
|
Approximate date of commencement of proposed sale
to the public:
From time to time after the effectiveness of this
registration statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is
a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is
a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is
a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
| |
|
Emerging
growth company |
☐ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 14, 2023
PROSPECTUS
![[GRAPHIC]](https://content.edgar-online.com/edgar_conv_img/2023/04/14/0001539497-23-000669_niocorplogo.jpg)
NioCorp Developments Ltd.
17,519,864 Common Shares
This prospectus relates to the issuance by us
of up to an aggregate of 17,519,864 of our common shares, without par value (“Common Shares”), that may be issued upon exercise
of 15,666,626 warrants issued in connection with the Transactions (as defined herein) (the “NioCorp Assumed Warrants”).
Each NioCorp Assumed Warrant is exercisable
for 1.11829212 Common Shares for cash or, as permitted in certain circumstances in accordance with their terms and the NioCorp Assumed
Warrant Agreement (as defined herein), on a cashless basis at a price per 1.11829212 Common Shares of $11.50, and will expire five years
after the Closing Date (as defined herein), at 5:00 p.m., New York City time, or earlier upon redemption or liquidation.
Upon exercise, we will receive the cash exercise
price of the NioCorp Assumed Warrants (assuming that they are not exercised on a cashless basis). We believe the likelihood that NioCorp
Assumed Warrant holders will exercise their NioCorp Assumed Warrants, and therefore the amount of cash proceeds that we would receive,
is, among other things, dependent upon the market price of our Common Shares. For so long as the market price for our Common Shares is
less than the exercise price of the NioCorp Assumed Warrants (as is the case as of the date of this prospectus), we believe such holders
will be unlikely to exercise their NioCorp Assumed Warrants. We expect to use the net proceeds that we receive from the exercise of the
NioCorp Assumed Warrants, if any, for working capital and general corporate purposes, including to advance our efforts to launch construction
of the Elk Creek Project and move it to commercial operation. See “Use of Proceeds.”
If all of the Common Shares covered by this
prospectus were issued and outstanding, they would represent a substantial percentage of our public float and of our outstanding Common
Shares. As of April 11, 2023, the Common Shares covered by this prospectus would represent approximately 36.81% of the total number
of outstanding Common Shares (assuming all of the Common Shares covered by this prospectus were issued and outstanding and not including
Common Shares issuable upon exercise of outstanding stock options, or reserved for future issuance, under the NioCorp Developments Ltd.
Long-Term Incentive Plan (the “LTIP”), Common Shares issuable in respect of the Commitment Amount (as defined herein) pursuant
to the Yorkville Equity Facility Financing Agreement (as defined herein) or Common Shares issuable upon conversion, exercise or exchange
of other outstanding securities, as described herein). Accordingly, the sale of the Common Shares covered by this prospectus, or the perception
that such sales may occur, could result in a significant decline in the public trading price of our Common Shares. Moreover, the sale
of additional Common Shares by us or by other security holders, or the perception that such sales may occur, could result in a further
decline in the public trading price of our Common Shares. See “Risk Factors—Additional Risks Related to this Offering and
Our Common Shares.”
Our Common Shares trade on The Nasdaq Global
Market under the symbol “NB” and on the Toronto Stock Exchange (the “TSX”) under the symbol “NB.”
On April 11, 2023, the last reported sale price of our Common Shares on The Nasdaq Global
Market and the TSX was $6.82 per Common Share and C$9.02
per Common Share, respectively. The public NioCorp Assumed Warrants trade on The Nasdaq Capital Market under the symbol “NIOBW.” On April 11, 2023, the last reported sale price of the public NioCorp Assumed Warrants on The Nasdaq Capital Market was $0.792 per public NioCorp Assumed Warrant. Our principal executive office is located at 7000 South Yosemite Street, Suite 115, Centennial, Colorado 80112, and our telephone number
is (855) 264-6267.
Investing in our Common Shares involves a
high degree of risk. You should review carefully the risks and uncertainties referenced under the heading “Risk Factors” beginning
on page 5 of this prospectus.
Neither the Securities and Exchange Commission
(the “SEC”) nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023.
Table
of Contents
Page
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the SEC using a “shelf” registration process.
You should rely only on the information provided
in this prospectus, as well as the information incorporated by reference into this prospectus and any applicable prospectus supplement.
We have not authorized anyone to provide you with different information. We have not authorized anyone to provide you with any information
or to make any representations other than those contained in this prospectus or any applicable prospectus supplement or any free writing
prospectuses prepared by or on behalf of us or to which we have referred you. We do not take responsibility for, and can provide no assurance
as to the reliability of, any other information that others may give you. You should not assume that the information in this prospectus
or any applicable prospectus supplement is accurate as of any date other than the date of the applicable document. Since the date of this
prospectus and the documents incorporated by reference into this prospectus, our business, financial condition, results of operations
and prospects may have changed. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not
permitted.
We may also provide a prospectus supplement
or post-effective amendment to the registration statement of which this prospectus is a part to add information to, or update or change
information contained in, this prospectus and the registration statement of which this prospectus is a part. You should read this prospectus
and any applicable prospectus supplement or post-effective amendment to the registration statement of which this prospectus is a part
together with the additional information to which we refer you in the sections of this prospectus entitled “Where You Can Find More
Information” and “Incorporation of Documents by Reference.”
Unless we state otherwise or the context
otherwise requires, the terms “we,” “us,” “our,” “our business” “NioCorp,”
“the Company” and similar references refer to NioCorp Developments Ltd. and its consolidated subsidiaries.
Unless we state otherwise or the context
otherwise requires, the term “ECRC” refers to Elk Creek Resources Corp. (formerly known as GX Acquisition Corp. II), a Delaware
corporation and a majority-owned subsidiary of NioCorp, as the surviving entity of the mergers that occurred on the Closing Date (as defined
herein) as part of the Transactions, and the term “GXII” refers to GX Acquisition Corp. II, a Delaware corporation, as it
existed prior to the Closing (as defined herein).
This prospectus contains our registered and
unregistered trademarks and service marks, as well as trademarks and service marks of third parties. Solely for convenience, these trademarks
and service marks are referenced without the ®, ™ or similar symbols, but such references are not intended to indicate, in anyway,
that we will not assert, to the fullest extent under applicable law, our rights to these trademarks and service marks. All brand names,
trademarks and service marks appearing in this prospectus are the property of their respective holders.
WHERE YOU CAN
FIND MORE INFORMATION
This prospectus is part of a registration statement
on Form S-3 that we filed with the SEC under the Securities Act of 1933 (the “Securities Act”) and does not contain all the
information set forth or incorporated by reference in the registration statement. Whenever a reference is made in this prospectus to any
of our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part
of the registration statement of which this prospectus is a part or the exhibits to the reports or other documents incorporated by reference
into this prospectus for a copy of such contract, agreement or other document. You may obtain copies of the registration statement and
its exhibits via the SEC’s EDGAR database.
We file annual, quarterly and current reports,
proxy statements and other information with the SEC under the Securities Exchange Act of 1934 (the “Exchange Act”). The SEC
maintains a website that contains reports, proxy and information statements and other information regarding issuers, including us, that
file electronically with the SEC. You may obtain documents that we file with the SEC at www.sec.gov.
We make available, free of charge, on our website
at www.niocorp.com, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements
and amendments to those reports and statements as soon as reasonably practicable after they are filed with the SEC. We do not incorporate
the information on or accessible through any website into this prospectus or any prospectus supplement, and you should not consider any
information on, or that can be accessed through, any website as part of this prospectus or any prospectus supplement. Our website address
and the SEC’s website address are included in this prospectus as inactive textual references only.
INCORPORATION
OF DOCUMENTS BY REFERENCE
SEC rules permit us to incorporate information
by reference into this prospectus and any applicable prospectus supplement. This means that we can disclose important information to you
by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part
of this prospectus and any applicable prospectus supplement, except for information superseded by information contained in this prospectus
or the applicable prospectus supplement itself or in any subsequently filed incorporated document. This prospectus and any applicable
prospectus supplement incorporate by reference the documents set forth below that we have previously filed with the SEC, other than information
in such documents that is deemed to be furnished and not filed. These documents contain important information about us and our business
and financial condition. Any report or information within any of the documents referenced below that is furnished, but not filed, shall
not be incorporated by reference into this prospectus:
| ● | our
Annual Report on Form 10-K for the fiscal year ended June 30, 2022, filed with the SEC on
September 6, 2022, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A for
the fiscal year ended June 30, 2022, filed with the SEC on October 31, 2022; |
| ● | our
Quarterly Reports on Form 10-Q for the quarter ended September 30, 2022, filed with the SEC
on November 14, 2022, and for the quarter ended December 31, 2022, filed with the SEC on
February 13, 2023; |
| ● | our
Current Reports on Form 8-K, filed with the SEC on September 29, 2022, October 21, 2022, December 15, 2022 (as amended by our
Current Report on Form 8-K/A filed on April 3, 2023), January 27, 2023 (Items 1.01, 2.03, 3.02 and 9.01 (Exhibits 4.1, 4.2, 4.3,
4.4 and 10.1) only), February 13, 2023, February 24, 2023, February 28, 2023, March 1, 2023, March 6, 2023, March 10, 2023, March
14, 2023 and March 17, 2023 (Items 1.01, 2.01, 3.01, 3.02, 3.03, 5.02, 8.01 and 9.01 (Exhibits 2.1, 3.1, 4.1, 4.2, 4.3, 10.1,
10.2, 10.3 and 10.4) only); and |
| ● |
a description of our Common Shares, contained in our Registration
Statement on Form 8-A, filed with the SEC on March 17, 2023, and any subsequently filed amendments and reports filed for the purpose
of updating that description. |
We also incorporate by reference any future
filings made by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished to, rather
than filed with, the SEC), including after the date of the initial registration statement of which this prospectus is a part and prior
to effectiveness of the registration statement, and after effectiveness of the registration statement and prior to the termination of
the offering of the securities made by this prospectus. Information in such future filings updates and supplements the information provided
in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information in
any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that
statements in the later filed document modify or replace such earlier statements.
You may request a copy of these filings, at
no cost, by writing or calling us at the following address or telephone number below:
NioCorp Developments Ltd.
7000 South Yosemite Street, Suite 115
Centennial, Colorado 80112
Phone: (855) 264-6267
Those copies will not include exhibits,
unless the exhibits have specifically been incorporated by reference in this document or you specifically request them.
SUMMARY
This summary highlights selected information
appearing in this prospectus. Because it is a summary, it may not contain all of the information that may be important to you. To understand
this offering fully, you should read this entire prospectus carefully, including the information set forth in the section entitled “Risk
Factors” contained in this prospectus and under similar headings in the other documents that are incorporated by reference into
this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our consolidated
financial statements and related notes and the exhibits to the registration statement of which this prospectus is a part, before making
an investment decision. This prospectus includes forward-looking statements that involve risks and uncertainties. See “Cautionary
Note Regarding Forward-Looking Statements.”
NioCorp Developments Ltd.
NioCorp is a mineral exploration company engaged
in the acquisition, exploration, and development of mineral properties. NioCorp, through its indirect, majority-owned subsidiary, ECRC,
is developing a superalloy materials project that, if and when developed, will produce niobium, scandium, and titanium products. Known
as the “Elk Creek Project,” it is located near Elk Creek, Nebraska, in the southeast portion of the state.
| ● | Niobium is used to produce various superalloys that are extensively used in high performance aircraft and jet turbines. It also is
used in high-strength low-alloy steel, a stronger steel used in automobiles, bridges, structural systems, buildings, pipelines, and other
applications that generally enables those applications to be stronger and lighter in mass. This “lightweighting” benefit often
results in environmental benefits, including reduced fuel consumption and material usage, which can result in fewer air emissions. |
| ● | Scandium can be combined with aluminum to make super-high-performance alloys with increased strength and improved corrosion resistance.
Scandium also is a critical component of advanced solid oxide fuel cells, an environmentally preferred technology for high-reliability,
distributed electricity generation. |
| ● | Titanium is a component of various superalloys and other applications that are used for aerospace applications, weapons systems, protective
armor, medical implants and many others. It also is used in pigments for paper, paint, and plastics. |
During fiscal year 2022, the Company also advanced
work on the determination of the economic potential of expanding its currently planned product suite from the Elk Creek Project to include
rare earth elements.
Our primary business strategy is to advance
our Elk Creek Project to commercial production. We are focused on obtaining additional funds to carry out our near-term planned work programs
associated with securing the project financing necessary to complete mine development and construction of the Elk Creek Project.
Background
Completion of the Transactions
On March 17, 2023 (the “Closing Date”),
NioCorp consummated the transactions contemplated by the previously-announced Business Combination Agreement, dated as of September 25,
2022 (the “Business Combination Agreement”), among NioCorp, GXII and Big Red Merger Sub Ltd (the “Closing”). The
transactions contemplated by the Business Combination Agreement, including the reverse stock split at a ratio of 10-for-1 effectuated
by each of NioCorp and ECRC on the Closing Date (the “Reverse Stock Split”), are referred to, collectively, as the “Transactions.”
In connection with the Closing, GXII, as the
surviving entity of the mergers that occurred on the Closing Date as part of the Transactions, changed its name to Elk Creek Resources
Corp. and became an indirect, majority-owned subsidiary of NioCorp, with the pre-combination public shareholders of GXII receiving Common
Shares based on a fixed exchange ratio of 11.1829212 (or 1.11829212 after giving effect to the Reverse Stock Split) (the “Exchange
Ratio”) Common Shares for each Class A common share of GXII held and not redeemed, and the GXII founders receiving shares of Class
B common stock of ECRC based on the Exchange Ratio. Pursuant to the Business Combination Agreement, the Sponsor Support Agreement, dated
as of September 25, 2022 (as amended,
supplemented or otherwise modified), by and among GXII, NioCorp,
GX Sponsor II LLC, in its capacity as a stockholder of GXII (the “Sponsor”), and certain other stockholders of GXII, and the
Exchange Agreement, dated as of March 17, 2023 (as amended, supplemented or otherwise modified), by and among NioCorp, ECRC and the Sponsor,
after the Closing, the GXII founders have the right to exchange such shares of Class B common stock of ECRC for Common Shares on a one-for-one
basis, subject to certain equitable adjustments, under certain conditions.
In connection with the Closing, pursuant to
the Business Combination Agreement, the Company assumed the Warrant Agreement, dated as of March 17, 2021 (the “GXII Warrant Agreement”),
by and between GXII and Continental Stock Transfer & Trust Company (“CST”), as warrant agent, and each share purchase
warrant of GXII thereunder (the “GXII Warrants”) that was issued and outstanding immediately prior to the Closing Date was
converted into one NioCorp Assumed Warrant pursuant to the GXII Warrant Agreement, as amended by an assignment, assumption and amendment
agreement, dated the Closing Date (the GXII Warrant Agreement, as so amended, the “NioCorp Assumed Warrant Agreement”), among
NioCorp, GXII, CST, as existing warrant agent, and Computershare Inc. and its affiliate Computershare Trust Company, N.A., together as
successor warrant agent (the “NioCorp Assumed Warrant Agent”). In connection with the Closing, NioCorp issued (a) 9,999,959
public NioCorp Assumed Warrants in respect of the GXII Warrants that were publicly traded prior to the Closing and (b) 5,666,667 NioCorp
Assumed Warrants to the Sponsor in respect of the GXII Warrants that it held prior to the Closing, which NioCorp Assumed Warrants were
subsequently distributed by the Sponsor to its members in connection with the Closing.
Both the public NioCorp Assumed Warrants and
the NioCorp Assumed Warrants issued to the Sponsor are subject to the terms of the NioCorp Assumed Warrant Agreement and are identical,
with certain exceptions applicable to the NioCorp Assumed Warrants issued to the Sponsor for so long as such NioCorp Assumed Warrants
are held by the Sponsor, its members, or their respective affiliates and other permitted transferees. In accordance with the NioCorp Assumed
Warrant Agreement, any NioCorp Assumed Warrants issued to the Sponsor that are not held by the Sponsor, its members, or their respective
affiliates and other permitted transferees, are treated as public NioCorp Assumed Warrants. See “Description of Capital Stock—NioCorp
Assumed Warrants” for a description of certain terms of the NioCorp Assumed Warrants.
Yorkville Financings
In connection with the entry into the
Business Combination Agreement, the Company announced the signing of non-binding letters of intent for two separate financing
packages with Yorkville Advisors Global, LP. On January 26, 2023, the Company entered into definitive agreements with respect to
these financings, including a Securities Purchase Agreement, dated January 26, 2023 (as amended, the "Yorkville Convertible
Debt Financing Agreement"), between the Company and YA II PN, Ltd ("YA"), a fund managed by Yorkville Advisors
Global, LP, a Standby Equity Purchase Agreement, dated January 26, 2023 (the “Yorkville Equity Facility Financing
Agreement”), between the Company and YA. Pursuant to the Yorkville Equity Facility Financing Agreement, YA has committed to
purchase up to $65.0 million of our Common Shares (the “Commitment Amount”), at our direction from time to time for a
period commencing upon the Closing Date and ending on the earliest of (i) the first day of the month next following the 36-month
anniversary of the Closing, (ii) the date on which YA shall have made payment of the full Commitment Amount and (iii) the date that
the Yorkville Equity Facility Financing Agreement otherwise terminates in accordance with its terms (the “Commitment
Period”), subject to certain limitations and the satisfaction of the conditions in the Yorkville Equity Facility Financing
Agreement. Pursuant to the terms of the Yorkville Equity Facility Financing Agreement, we issued 81,213 of our Common Shares (the
“Commitment Shares”) to YA as consideration for its irrevocable commitment to purchase Common Shares under the Yorkville
Equity Facility Financing Agreement. Additionally, we are required to pay YA an aggregate fee of $1,500,000 in cash (the “Cash
Fee”), including $500,000 that we paid on the Closing Date and the remainder that we will pay in installments over a 12-month
period following the Closing Date, provided that, we will have the right to prepay without penalty all or part of the remaining
installments of the Cash Fee at any time.
Pursuant to the Yorkville Convertible Debt
Financing Agreement, at the Closing, YA advanced a total amount of $15.36 million to NioCorp in consideration of the issuance by
NioCorp to YA of (i) $16.0 million aggregate principal amount of unsecured convertible debentures (the “Convertible Debentures”)
and (ii) Common Share purchase warrants, exercisable for up to 1,789,267 Common Shares for cash or, if at any time there is no effective
registration statement registering, or no current prospectus available for, the resale of the underlying Common Shares, on a cashless
basis, at the option of the holder, at a price per Common Share of approximately $8.9422, subject to adjustment to give effect to any
stock dividend, stock split, reverse stock split or similar transaction (the “Financing Warrants”). See “Description
of Capital Stock—Yorkville Convertible Debentures” and
“Description of Capital Stock—Financing Warrants,”
respectively, for descriptions of certain terms of the Convertible Debentures and the Financing Warrants.
Corporate Information
Our Common Shares trade on The Nasdaq Global
Market under the symbol “NB” and on the TSX under the symbol “NB.” The public NioCorp Assumed Warrants trade on
The Nasdaq Capital Market under the symbol “NIOBW.” Our principal executive office is located at 7000 South Yosemite Street,
Suite 115, Centennial, CO 80112, and our telephone number is (855) 264-6267. Our website address is www.niocorp.com. This website
address is not intended to be an active link, and information on, or accessible through, our website is not incorporated by reference
into this prospectus and you should not consider any information on, or that can be accessed from, our website as part of this prospectus
or any accompanying prospectus supplement.
SECURITIES OFFERED
| Common
Shares Offered Hereby |
Up
to 17,519,864 Common Shares issuable upon exercise of the NioCorp Assumed Warrants. |
| Common Shares Outstanding
Prior to this Offering(1) |
30,081,655
Common Shares (as of April 11, 2023). |
| Common Shares Outstanding
After this Offering(1) |
47,601,519
Common Shares, assuming the issuance of 17,519,864 Common Shares upon exercise of the NioCorp Assumed Warrants. |
| Use of Proceeds |
Upon
exercise, we will receive the cash exercise price of the NioCorp Assumed Warrants (assuming that they are not exercised on a cashless
basis). We believe the likelihood that NioCorp Assumed Warrant holders will exercise their NioCorp Assumed Warrants, and therefore
the amount of cash proceeds that we would receive, is, among other things, dependent upon the market price of our Common Shares.
For so long as the market price for our Common Shares is less than the exercise price of the NioCorp Assumed Warrants (as is the
case as of the date of this prospectus), we believe such holders will be unlikely to exercise their NioCorp Assumed Warrants. We
expect to use the net proceeds that we receive from the exercise of the NioCorp Assumed Warrants, if any, for working capital and
general corporate purposes, including to advance our efforts to launch construction of the Elk Creek Project and move it to commercial
operation. See “Use of Proceeds.” |
| Market for Common Shares |
Our
Common Shares trade on The Nasdaq Global Market under the symbol “NB” and on the TSX under the symbol “NB.” |
| Risk
Factors |
See
“Risk Factors” and other information included in this prospectus for a discussion of factors you should consider before
investing in our securities. |
| ● | Common
Shares issuable upon exercise of outstanding stock options under the LTIP; |
| ● | Common
Shares reserved for future issuance under the LTIP; |
| ● | Common
Shares issuable in respect of the Commitment Amount pursuant to the Yorkville Equity Facility
Financing Agreement; |
| ● | Common
Shares issuable upon conversion of the Convertible Debentures; |
| ● | an
aggregate of 1,789,267 Common Shares issuable upon exercise of the Financing Warrants; |
| ● | an
aggregate of 7,957,404 Common Shares issuable under certain conditions upon exchange of shares
of Class B common stock of ECRC; and |
| ● | an
aggregate of 1,801,622 Common Shares issuable upon exercise of other outstanding Common Share
purchase warrants with a weighted-average exercise price of approximately C$11.68. |
RISK FACTORS
Investing in our Common Shares involves a high
degree of risk. Before making a decision to invest in our Common Shares, you should carefully consider the risks described below and under
the heading “Risk Factors” in the applicable prospectus supplement, and discussed under Part I, Item 1A. “Risk Factors”
contained in our most recent Annual Report on Form 10-K, and Part II, Item 1A. “Risk Factors” contained in our subsequent
Quarterly Reports on Form 10-Q, as well as any amendments thereto, which are incorporated by reference into this prospectus and the applicable
prospectus supplement in their entirety, together with other information in this prospectus and the applicable prospectus supplement and
the documents incorporated by reference herein and therein. See the sections of this prospectus entitled “Where You Can Find More
Information” and “Incorporation of Documents by Reference.” Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also affect our business, financial condition or results of operations. The occurrence of
any of these known or unknown risks might cause you to lose all or part of your investment in our Common Shares.
Additional Risks Related to this Offering
and Our Common Shares
Future sales, or the
perception of future sales, of Common Shares covered by this prospectus could adversely affect prevailing market prices for the Common
Shares.
If all of the Common Shares covered by this
prospectus were issued and outstanding, they would represent a substantial percentage of our public float and of our outstanding Common
Shares. As of April 11, 2023, the Common Shares covered by this prospectus would represent approximately 36.81% of the total number
of outstanding Common Shares (assuming all of the Common Shares covered by this prospectus were issued and outstanding and not including
Common Shares issuable upon exercise of outstanding stock options, or reserved for future issuance, under the LTIP, Common Shares issuable
in respect of the Commitment Amount pursuant to the Yorkville Equity Facility Financing Agreement or Common Shares issuable upon conversion,
exercise or exchange of other outstanding securities, as described herein). Accordingly, the sale of the Common Shares covered by this
prospectus, or the perception that such sales may occur, could result in a significant decline in the public trading price of our Common
Shares.
We may not recognize
the full value of the Yorkville Equity Facility Financing Agreement and may not receive any proceeds from the exercise of the NioCorp
Assumed Warrants, the Financing Warrants and our other outstanding Common Share purchase warrants, and the potential adverse effect on
the prevailing market prices for our Common Shares as a result of sales, or the perception of future sales, of Common Shares covered by
this prospectus could adversely affect our ability to raise additional capital and you could lose all or part of your investment.
Although we have entered into the Yorkville
Equity Facility Financing Agreement, we may not recognize the full value thereof. Specifically, our ability to sell Common Shares to YA
pursuant to the Yorkville Equity Facility Financing Agreement is subject to certain restrictions and limitations, which may prevent us
from selling the full Commitment Amount prior to the expiration of the Commitment Period. Our ability to recognize the full value of the
Yorkville Equity Facility Financing Agreement may be further impeded by the potential negative pressure on the market price of our Common
Shares as a result of sales, or the perception of future sales, of the Common Shares covered by this prospectus. As a result, there can
be no assurance that we will receive all or even a significant portion of the proceeds that we expect to receive in connection with the
Yorkville Equity Facility Financing Agreement.
In addition, upon exercise, we will receive
the cash exercise price of the NioCorp Assumed Warrants (assuming that they are not exercised on a cashless basis). Further, we will receive
the cash exercise price of the Financing Warrants and our other outstanding Common Share purchase warrants upon exercise (assuming, with
respect to the Financing Warrants, that the holders do not exercise their Financing Warrants on a cashless basis). We believe the likelihood
that holders of the NioCorp Assumed Warrants, the Financing Warrants or other outstanding Common Share purchase warrants will exercise
their NioCorp Assumed Warrants, Financing Warrants or other outstanding Common Share purchase warrants, and therefore the amount of cash
proceeds that we would receive, is, among other things, dependent upon the market price of our Common Shares. For so long as the market
price for our Common Shares is less than the applicable exercise price of the NioCorp Assumed Warrants, the Financing Warrants or other
outstanding Common Share purchase warrants (as is the case as of the date of this prospectus), we believe such holders will be unlikely
to exercise their NioCorp Assumed Warrants, Financing Warrants or other
outstanding Common Share purchase warrants. The potential adverse
effect on the prevailing market price of our Common Shares as a result of sales of Common Shares covered by this prospectus, or the perception
that such sales may occur, could keep the market price for our Common Shares below the applicable exercise price of the NioCorp Assumed
Warrants, the Financing Warrants or other outstanding Common Share purchase warrants. Accordingly, the holders of the NioCorp Assumed
Warrants, the Financing Warrants or other outstanding Common Share purchase warrants may not exercise their NioCorp Assumed Warrants,
Financing Warrants or other outstanding Common Share purchase warrants before they expire, and we may not receive any proceeds from the
exercise of the NioCorp Assumed Warrants, the Financing Warrants or other outstanding Common Share purchase warrants.
We incurred significant debt in connection
with the Transactions, including upon issuance of the Convertible Debentures, and we require significant additional capital to operate
our business. For example, notwithstanding whether we are able to recognize the full value of the Yorkville Equity Facility Financing
Agreement or receive the cash exercise price of the NioCorp Assumed Warrants, the Financing Warrants or other outstanding Common Share
purchase warrants, we are obligated to repay or issue Common Shares upon settlement of the full $16.0 million aggregate principal amount
of the Convertible Debentures. Such significant additional debt could adversely affect our business, which may prevent us from fulfilling
our obligations with respect to our existing debt or obtaining future financing. Further, the Yorkville Convertible Debt Financing Agreement
restricts us from pursuing certain variable rate financing transactions, which could impair our ability to obtain additional financing
on terms that are favorable, or at all. In addition, if the market price of the Common Shares were to drop as a result of sales, or the
perception of future sales, of the Common Shares covered by this prospectus, this might impede our ability to raise additional capital.
Our inability to obtain additional financing on terms that are favorable, or at all, could have a material adverse effect on our financial
condition, results of operations and prospects, and you may lose all or part of your investment.
Future sales, or the
perception of future sales, of Common Shares by existing shareholders or by us, or future dilutive issuances of Common Shares by us, could
adversely affect prevailing market prices for the Common Shares.
Subject to compliance with applicable securities
laws, sales of a substantial number of Common Shares in the public market could occur at any time, including issuances and sales of additional
Common Shares by us, sales of Common Shares by NioCorp Assumed Warrant holders following the exercise of such holders’ NioCorp Assumed
Warrants and sales by other security holders. These sales, or the market perception that the holders of a large number of Common Shares
or securities convertible, exercisable or exchangeable into Common Shares intend to sell Common Shares, could reduce the prevailing market
price of the Common Shares. The effect, if any, that future public sales of these securities or the availability of these securities for
sale will have on the market price of the Common Shares is uncertain. If the market price of the Common Shares were to drop as a result,
this might impede our ability to raise additional capital and might cause remaining shareholders to lose all or part of their investment.
Following the Closing, the Sponsor, the members
of the Sponsor, the advisors of GXII that received Common Shares as part of their fee in connection with the Closing, as well as the pre-Closing
directors and officers of NioCorp, are subject to “lock-up” restrictions. The provisions of these “lock-up” restrictions
may be waived under limited circumstances and allow us to, among other things, issue additional Common Shares, or allow the directors
and officers of NioCorp or its shareholders to sell their Common Shares at any time. There are no pre-established conditions for the grant
of such a waiver by the relevant parties, and any decision by the applicable parties to waive those conditions may depend on a number
of factors, which might include market conditions, the performance of the Common Shares in the market and our financial condition at that
time. If the “lock-up” restrictions of the applicable shareholders or the directors and officers of NioCorp are waived, additional
Common Shares will be available for sale into the public market, subject to applicable securities laws, which, in both cases, could reduce
the prevailing market price for the Common Shares.
In addition, pursuant to the Yorkville Convertible
Debt Financing Agreement, YA may convert the Convertible Debentures and exercise the Financing Warrants from time to time, subject to
certain limitations, and we will issue Common Shares to YA upon such conversions and exercises. We have filed a registration
statement under the Securities Act covering resales by YA of the Common Shares issuable upon conversion of the Convertible Debentures
and exercise of the Financing Warrants. Accordingly, any Common Shares that we issue upon conversion of the Convertible Debentures or
exercise of the Financing Warrants will be available for sale into the
public market, subject to applicable securities laws, which could
reduce the prevailing market price for the Common Shares.
Additionally, pursuant to the
Yorkville Equity Facility Financing Agreement, YA has committed to purchase up to $65.0 million of our Common Shares, at our
direction from time to time during the Commitment Period, subject to certain limitations and the satisfaction of the
conditions in the Yorkville Equity Facility Financing Agreement. Pursuant to the terms of the Yorkville Equity Facility
Financing Agreement, we issued 81,213 Commitment Shares to YA as consideration for its irrevocable commitment to purchase
Common Shares under the Yorkville Equity Facility Financing Agreement. We have filed a registration statement under the
Securities Act covering resales by YA of the Common Shares issuable pursuant to the Yorkville Equity Facility Financing
Agreement. Accordingly, any Common Shares that we issue pursuant to the Yorkville Equity Facility Financing Agreement will be
available for sale into the public market, subject to applicable securities laws, which could reduce the prevailing market
price for the Common Shares.
There can be no assurance
that we will be able to comply with the continued listing standards of The Nasdaq Stock Market LLC (“Nasdaq”).
Our Common Shares are currently listed on The
Nasdaq Global Market under the symbol “NB.” If Nasdaq delists the Common Shares from trading on its exchange for failure to
meet Nasdaq continued listing standards, the Company and its shareholders could face significant material adverse consequences, including:
| ● | a limited availability of market quotations for our securities; |
| ● | a determination that our Common Shares are a “penny stock,” which will require brokers trading in Common Shares to adhere
to more stringent rules, possibly resulting in a reduced level of trading activity in the secondary trading market for Common Shares; |
| ● | a limited amount of analyst coverage; and |
| ● | a decreased ability to issue additional securities or obtain additional financing in the future. |
The Articles of NioCorp,
as amended in connection with the Transactions (the “Amended Articles”), permit us to issue an unlimited number of Common
Shares without seeking shareholder approval.
The Amended Articles permit us to issue an
unlimited number of Common Shares. It is anticipated that we will, from time to time, issue additional Common Shares in the future. Subject
to the requirements of the British Columbia Business Corporations Act (“BCBCA”), Nasdaq and the TSX, we will not be required
to obtain the approval of the NioCorp shareholders for the issuance of additional Common Shares. Any further issuances of Common Shares
will result in immediate dilution to existing shareholders and may have an adverse effect on the value of their shareholdings.
NioCorp may be a “passive
foreign investment company” for the current taxable year and for one or more future taxable years, which may result in materially
adverse U.S. federal income tax consequences for U.S. investors.
If NioCorp is a passive foreign investment
company (“PFIC”) for any taxable year, or portion thereof, that is included in the holding period of a U.S. Holder (as defined
in “Certain United States Federal Income Tax Considerations,” below) of Common Shares, such U.S. Holder may be subject to
certain adverse U.S. federal income tax consequences and additional reporting requirements. NioCorp believes it was classified as a PFIC
during its taxable years ended June 30, 2022 and June 30, 2021 and, based on the current composition of its income and assets, as well
as current business plans and financial expectations, may be treated as a PFIC for the taxable year in which the Transactions occurred
or in future taxable years. Any conclusion regarding PFIC status is a factual determination that must be made annually at the close of
each taxable year and, thus, is subject to change. In addition, even if NioCorp concluded it did not qualify as a PFIC, it is possible
that the U.S. Internal Revenue Service (the “IRS”) could assert, and that a court could sustain, a determination that NioCorp
is a PFIC. Accordingly, there can be no assurance that NioCorp will not be treated as a PFIC for any taxable year. Each holder of Common
Shares should consult its own tax advisors regarding the PFIC rules and the U.S. federal income tax consequences of the acquisition, ownership,
and disposition of such securities. See “Certain United States Federal Income Tax Considerations” below, for further details
regarding this issue.
The Transactions could result in NioCorp
becoming subject to materially adverse U.S. federal income tax consequences.
Section 7874 and related sections of the U.S.
Internal Revenue Code of 1986, as amended (the “Code”), provide for certain adverse tax consequences when the stock of a U.S.
corporation is acquired by a non-U.S. corporation in certain transactions in which former shareholders of the U.S. corporation come to
own 60% or more of the stock of the non-U.S. corporation (by vote or value, and applying certain specific counting and ownership rules).
These adverse tax consequences include (i) potential additional required gain recognition by the U.S. corporation, (ii) treatment of certain
payments to the non-U.S. corporation that reduce gross income as “base erosion payments,” (iii) an excise tax on certain options
and stock-based compensation of the U.S. corporation, (iv) disallowance of “qualified dividend” treatment for distributions
by the non-U.S. corporation, and (v) if former shareholders of the U.S. corporation come to own 80% or more of the stock of the non-U.S.
corporation, treatment of the non-U.S. corporation as a U.S. corporation subject to U.S. federal income tax on its worldwide income (in
addition to any tax imposed by non-U.S. jurisdictions). If the Transactions result in the application of any of these, or any other, adverse
tax consequences, NioCorp could incur significant additional tax costs. While NioCorp currently does not believe the Transactions will
cause such adverse tax consequences as a result of Section 7874 and related sections of the Code, this determination is subject to significant
legal and factual uncertainty. NioCorp has not sought and will not seek any rulings from the IRS as to the tax treatment of any of the
Transactions. Further, there can be no assurance that your tax advisor, the IRS, or a court, will agree with the position that NioCorp
is not subject to these adverse tax consequences.
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the other documents incorporated
by reference into this prospectus contain or may contain “forward-looking statements” within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act, and “forward-looking information” within the meaning of applicable
Canadian securities laws (collectively, “forward-looking statements”).
Forward-looking statements have been based
upon our current business and operating plans, as approved by the Company’s Board of Directors, and may include statements regarding
the anticipated benefits of the Transactions, including NioCorp’s ability to access the full amount of the expected net proceeds
of the Yorkville Equity Facility Financing Agreement over the next three years; NioCorp’s ability to receive a final commitment
of financing from the Export-Import Bank of the United States (“EXIM”); anticipated benefits of the listing of the Common
Shares on Nasdaq; the financial and business performance of NioCorp; NioCorp’s anticipated results and developments in the operations
of NioCorp in future periods; NioCorp’s planned exploration activities; the adequacy of NioCorp’s financial resources; NioCorp’s
ability to secure sufficient project financing to complete construction and commence operation of the Elk Creek Project; NioCorp’s
expectation and ability to produce niobium, scandium, and titanium at the Elk Creek Project; the outcome of current recovery process improvement
testing, and NioCorp’s expectation that such process improvements could lead to greater efficiencies and cost savings in the Elk
Creek Project; the Elk Creek Project’s ability to produce multiple critical metals; the Elk Creek Project’s projected ore
production and mining operations over its expected mine life; the completion of the demonstration plant and technical and economic analyses
on the potential addition of magnetic rare earth oxides to NioCorp's planned product suite; the exercise of options to purchase additional
land parcels; the execution of contracts with engineering, procurement and construction companies; NioCorp’s ongoing evaluation
of the impact of inflation, supply chain issues and geopolitical unrest on the Elk Creek Project’s economic model; the impact of
health epidemics, including the COVID-19 pandemic, on NioCorp’s business and the actions NioCorp may take in response thereto; and
the creation of full time and contract construction jobs over the construction period of the Elk Creek Project.
Forward-looking statements are frequently,
but not always, identified by words such as “expects,” “anticipates,” “believes,” “intends,”
“estimates,” “potential,” “possible,” and similar expressions, or statements that events, conditions,
or results “will,” “may,” “could,” or “should” (or the negative and grammatical variations
of any of these terms) occur or be achieved. Any statements that express or involve discussions with respect to predictions, expectations,
beliefs, plans, projections, objectives, assumptions, or future events or performance (often, but not always, using words or phrases such
as “expects” or “does not expect,” “is expected,” “anticipates” or “does not anticipate,”
“plans,” “estimates,” or “intends,” or stating that certain actions, events, or results “may,”
“could,” “would,” “might,” or “will” be taken, occur or be achieved) are not statements
of historical fact and may be forward-looking statements. Such forward-looking statements reflect the Company’s current views with
respect to future events and are subject to certain known and unknown risks, uncertainties, and assumptions. Many factors could cause
actual results, performance, or achievements to be materially different from any future results, performance, or achievements that may
be expressed or implied by such forward-looking statements, including, among others, risks related to the following: NioCorp’s ability
to recognize the anticipated benefits of the Transactions, including NioCorp’s ability to access the full amount of the expected
net proceeds under the Yorkville Equity Facility Financing Agreement over the next three years; unexpected costs related to the Transactions;
the outcome of any legal proceedings that may be instituted against NioCorp following closing of the Transactions; NioCorp’s ability
to receive a final commitment of financing from EXIM on the anticipated timeline, on acceptable terms, or at all; NioCorp’s ability
to continue to meet Nasdaq listing standards; NioCorp’s ability to operate as a going concern; risks relating to the Common Shares,
including price volatility, lack of dividend payments and dilution or the perception of the likelihood any of the foregoing; NioCorp’s
requirement of significant additional capital; the extent to which NioCorp’s level of indebtedness and/or the terms contained in
agreements governing NioCorp’s indebtedness or the Yorkville Equity Facility Financing Agreement may impair NioCorp’s ability
to obtain additional financing; covenants contained in agreements with NioCorp’s secured creditors that may affect its assets; NioCorp’s
limited operating history; NioCorp’s history of losses; the restatement of NioCorp’s consolidated financial statements as
of and for the fiscal years ended June 30, 2022 and 2021 and the interim periods ended September 30, 2021, December 31, 2021, and March
31, 2022 and the impact of such restatement on NioCorp’s future financial statements and other financial measures; the material
weakness in NioCorp’s internal control over financial reporting, NioCorp’s efforts to remediate such material weakness and
the timing of remediation; the possibility that NioCorp may qualify as a PFIC under the Code; the potential that the Transactions could
result in
NioCorp becoming subject to materially adverse U.S. federal income
tax consequences as a result of the application of Section 7874 and related sections of the Code; cost increases for NioCorp’s exploration
and, if warranted, development projects; a disruption in, or failure of, NioCorp’s information technology systems, including those
related to cybersecurity; equipment and supply shortages; current and future offtake agreements, joint ventures, and partnerships; NioCorp’s
ability to attract qualified management; the effects of the COVID-19 pandemic or other global health crises on NioCorp’s business
plans, financial condition and liquidity; estimates of mineral resources and reserves; mineral exploration and production activities;
feasibility study results; the results of metallurgical testing; changes in demand for and price of commodities (such as fuel and electricity)
and currencies; competition in the mining industry; changes or disruptions in the securities markets; legislative, political or economic
developments, including changes in federal and/or state laws that may significantly affect the mining industry; the impacts of climate
change, as well as actions taken or required by governments related to strengthening resilience in the face of potential impacts from
climate change; the need to obtain permits and comply with laws and regulations and other regulatory requirements; the timing and reliability
of sampling and assay data; the possibility that actual results of work may differ from projections/expectations or may not realize the
perceived potential of NioCorp’s projects; risks of accidents, equipment breakdowns, and labor disputes or other unanticipated
difficulties or interruptions; the possibility of cost overruns or unanticipated expenses in development programs; operating or technical
difficulties in connection with exploration, mining, or development activities; the management of the water balance at the Elk Creek Project
site; land reclamation requirements related to the Elk Creek Project; the speculative nature of mineral exploration and development, including
the risks of diminishing quantities of grades of reserves and resources; claims on the title to NioCorp’s properties; potential
future litigation; and NioCorp’s lack of insurance covering all of NioCorp’s operations.
Should one or more of these risks or uncertainties
materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described herein. This list
is not exhaustive of the factors that may affect any of the Company’s forward-looking statements. Forward-looking statements are
statements about the future and are inherently uncertain, and actual achievements of the Company or other future events or conditions
may differ materially from those reflected in the forward-looking statements due to a variety of risks, uncertainties, and other factors,
including without limitation those discussed under Part I, Item 1A. “Risk Factors” contained in our most recent Annual Report
on Form 10-K, and Part II, Item 1A. “Risk Factors” contained in our subsequent Quarterly Reports on Form 10-Q, as well as
any amendments thereto, which are incorporated by reference into this prospectus and the applicable prospectus supplement in their entirety,
together with other information in this prospectus and the applicable prospectus supplement and the documents incorporated by reference
herein and therein. See the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation
of Documents by Reference.”
The Company’s forward-looking statements
contained in this prospectus are based on the beliefs, expectations, and opinions of management as of the date of this prospectus. The
Company does not assume any obligation to update forward-looking statements if circumstances or management’s beliefs, expectations,
or opinions should change, except as required by law. For the reasons set forth above, investors should not attribute undue certainty
to, or place undue reliance on, forward-looking statements.
USE OF PROCEEDS
This prospectus relates to the
issuance by us of the Common Shares that may be issued from time to time upon exercise of the NioCorp Assumed Warrants. All
of the Common Shares offered pursuant to this prospectus and actually issued will be sold by the holders for their own
accounts. We will not receive any of the proceeds from these sales. However, we will receive the cash exercise price of the
NioCorp Assumed Warrants upon exercise thereof, unless such NioCorp Assumed Warrants are exercised on a cashless basis, as
permitted in certain circumstances in accordance with their terms and the NioCorp Assumed Warrant Agreement. If all of the
NioCorp Assumed Warrants outstanding as of the date hereof are exercised, we will issue 17,519,864 Common Shares and will
receive maximum aggregate proceeds of approximately $180.2 million, which will be reduced by the amount that holders of the
NioCorp Assumed Warrants will not pay if any NioCorp Assumed Warrants are exercised on a cashless basis. We have no assurance
that any of the NioCorp Assumed Warrants will be exercised. We believe the likelihood that NioCorp Assumed Warrant holders
will exercise their NioCorp Assumed Warrants, and therefore the amount of cash proceeds that we would receive, is, among
other things, dependent upon the market price of our Common Shares. For so long as the market price for our Common Shares is
less than the exercise price of the NioCorp Assumed Warrants (as is the case as of the date of this prospectus), we believe
such holders will be unlikely to exercise their NioCorp Assumed Warrants. See “Description of Capital
Stock—NioCorp Assumed Warrants” for a discussion of the exercise price of the NioCorp Assumed Warrants and
adjustments thereto.
We expect to use the net proceeds that we receive
from the exercise of the NioCorp Assumed Warrants, if any, for working capital and general corporate purposes, including to advance our
efforts to launch construction of the Elk Creek Project and move it to commercial operation.
Description
of Capital Stock
Common Shares
The authorized capital of the Company consists
of an unlimited number of Common Shares, without par value. The holders of Common Shares are entitled to receive notice of and attend
all meetings of shareholders, with each Common Share held entitling the holder to one vote on any resolution to be passed at such shareholder
meetings. The holders of Common Shares are entitled to dividends if, as and when declared by the Company’s Board of Directors. The
Common Shares are entitled, upon liquidation, dissolution, or winding up of the Company, to receive the remaining assets of the Company
available for distribution to shareholders. There are no pre-emptive, conversion, or redemption rights attached to the Common Shares.
Exchange Controls
There are no governmental laws, decrees, or
regulations in Canada that restrict the export or import of capital, including foreign exchange controls, or that affect the remittance
of dividends, interest or other payments to non-resident holders of the securities of the Company, other than as discussed below and Canadian
withholding tax. See “Certain Canadian Federal Income Tax Considerations for U.S. Residents” below.
Competition Act
Limitations on the ability to acquire and hold
Common Shares may be imposed by the Competition Act (Canada). This legislation permits the Commissioner of Competition of Canada (the
“Commissioner”) to review any acquisition of a significant interest in the Company. This legislation grants the Commissioner
jurisdiction to challenge such an acquisition before the Canadian Competition Tribunal if the Commissioner believes that it would, or
would be likely to, result in a substantial lessening or prevention of competition in any market in Canada.
Investment Canada Act
The Investment Canada Act subjects an acquisition
of control of a company by a non-Canadian to government review if the enterprise value of such company, as calculated pursuant to the
legislation, exceeds a threshold amount. A reviewable acquisition may not proceed unless the relevant minister is satisfied that the investment
is likely to result in a net benefit to Canada. Under the national-security-review regime in the Investment Canada Act, review on a discretionary
basis may also be undertaken by the federal government in respect of a broad range of investments by a non-Canadian. No financial threshold
applies to a national security review. The relevant test is whether such investment by a non-Canadian could be “injurious to national
security.”
Warrants
From time to time, the Company has outstanding
Common Share purchase warrants, with each Common Share purchase warrant exercisable for one Common Share. The exercise price per Common
Share and the number of Common Shares issuable upon exercise of Common Share purchase warrants is subject to adjustment upon the occurrence
of certain events, including, but not limited to, the following:
| ● | the
subdivision or re-division of the outstanding Common Shares into a greater number of Common
Shares; |
| ● | the
reduction, combination or consolidation of the outstanding Common Shares into a lesser number
of Common Shares; |
| ● | the
issuance of Common Shares or securities exchangeable for, or convertible into, Common Shares
to all or substantially all of the holders of Common Shares by way of stock dividend or other
distribution (other than a distribution of Common Shares upon the exercise of Common Share
purchase warrants or any outstanding options); |
| ● | the
reorganization of the Company or the consolidation or merger or amalgamation of the Company
with or into another body corporate; and |
| ● | a
reclassification or other similar change to the outstanding Common Shares. |
The Company will issue the Common Shares issuable upon exercise of Common
Share purchase warrants within five business days following its receipt of notice of exercise and payment of the exercise price, subject
to surrender of the Common Share purchase warrants. Prior to the exercise of any Common Share purchase warrants, holders of the Common
Share purchase warrants will not have any of the rights of holders of the Common Shares issuable upon exercise, including the right to
vote or to receive any payments of dividends on the Common Shares issuable upon exercise.
NioCorp Assumed Warrants
In connection with the Closing, pursuant to
the Business Combination Agreement, the Company assumed the GXII Warrant Agreement and each GXII Warrant thereunder that was issued and
outstanding immediately prior to the Closing Date was converted into one NioCorp Assumed Warrant pursuant to the NioCorp Assumed Warrant
Agreement. In connection with the Closing, NioCorp issued (a) 9,999,959 public NioCorp Assumed Warrants in respect of the GXII Warrants
that were publicly traded prior to the Closing and (b) 5,666,667 NioCorp Assumed Warrants to the Sponsor in respect of the GXII Warrants
that it held prior to the Closing, which NioCorp Assumed Warrants were subsequently distributed by the Sponsor to its members in connection
with the Closing.
Both the public NioCorp Assumed Warrants and
the NioCorp Assumed Warrants issued to the Sponsor are subject to the terms of the NioCorp Assumed Warrant Agreement and are identical,
with certain exceptions applicable to the NioCorp Assumed Warrants issued to the Sponsor for so long as such NioCorp Assumed Warrants
are held by the Sponsor, its members, or their respective affiliates and other permitted transferees. In accordance with the NioCorp Assumed
Warrant Agreement, any NioCorp Assumed Warrants issued to the Sponsor that are held by someone other than the Sponsor, its members, or
their respective affiliates and other permitted transferees, are treated as public NioCorp Assumed Warrants.
Each NioCorp Assumed Warrant is exercisable
on and after the 30th day following the Closing Date until its expiration for 1.11829212 Common Shares at a price of $11.50 per 1.11829212
Common Shares (subject to adjustments for stock splits, stock dividends, reorganizations, recapitalizations and the like). Under the terms
of NioCorp Assumed Warrant Agreement, for so long as the NioCorp Assumed Warrants issued to the Sponsor are held by the Sponsor, its members,
or their respective affiliates and other permitted transferees, such holders have the right to elect to exercise those NioCorp Assumed
Warrants on a cashless basis. For such NioCorp Assumed Warrants exercised on a cashless basis after the Closing, the holder will be entitled
to pay the exercise price for those NioCorp Assumed Warrants by surrendering all or portion of the cash and/or Common Shares (valued at
their fair market value) into which those NioCorp Assumed Warrants are exercisable as shall be elected by the holder. For this purpose,
Common Shares so surrendered will be deemed to have a “fair market value” equal to the average reported last sale price of
the Common Shares for the 10 trading days ending on the third trading day prior to the date of exercise of the applicable NioCorp Assumed
Warrants.
The NioCorp Assumed Warrants will expire five years
after the Closing Date, at 5:00 p.m., New York City time, or earlier upon redemption or liquidation.
The Company will not be obligated to deliver any Common
Shares pursuant to the exercise of a NioCorp Assumed Warrant and will have no obligation to settle such exercise unless a registration
statement under the Securities Act with respect to the Common Shares underlying the NioCorp Assumed Warrants is then effective and a prospectus
relating thereto is current, subject to the Company satisfying its obligations described below with respect to registration. No NioCorp
Assumed Warrant will be exercisable and the Company will not be obligated to issue Common Shares upon exercise of a NioCorp Assumed Warrant
unless Common Shares issuable upon such exercise have been registered, qualified or deemed to be exempt under the securities laws of the
state of residence of the registered holder of the NioCorp Assumed Warrants. In the event that the conditions in the two immediately preceding
sentences are not satisfied with respect to a NioCorp Assumed Warrant, the holder of such NioCorp Assumed Warrant will not be entitled
to exercise such NioCorp Assumed Warrant and such NioCorp Assumed Warrant may have no value and expire worthless. In no event will the
Company be required to net cash settle any NioCorp Assumed Warrant.
The NioCorp Assumed Warrants, and the underlying Common
Shares issuable upon the exercise thereof, were registered under the Securities Act pursuant to the Company’s registration statement
on Form S-4, originally filed on November 7, 2022, as subsequently amended, which was declared effective by the SEC on February 8, 2023.
The ongoing offering of the Common Shares underlying the NioCorp Assumed Warrants is being registered pursuant to the Company’s
registration statement on Form S-3 of which this prospectus is a part.
The Company will have the right to call the public
NioCorp Assumed Warrants for redemption at any time following the Closing Date:
| ● | in
whole and not in part; |
| ● | at
a price of $0.01 per NioCorp Assumed Warrant; |
| ● | upon
not less than 30 days’ prior written notice of redemption (the “30-day redemption
period”) to each public NioCorp Assumed Warrant holder; |
| ● | if,
and only if, the reported last sale price of the Common Shares equals or exceeds approximately
$16.10 per share (subject to certain adjustments) for any 20 trading days within a 30-trading
day period commencing once the NioCorp Assumed Warrants become exercisable and ending three
business days before the Company sends the notice of redemption to the public NioCorp Assumed
Warrant holders; and |
| ● | if
there is an effective registration statement covering the Common Shares issuable upon exercise
of the NioCorp Assumed Warrants, and a current prospectus relating thereto, available throughout
the 30-day redemption period. |
The NioCorp Assumed Warrants issued to the Sponsor are not redeemable by
the Company for so long as such NioCorp Assumed Warrants are held by the Sponsor, its members, or their respective affiliates or other
permitted transferees. In addition, the Company may not exercise its redemption right if the issuance of Common Shares upon exercise of
the NioCorp Assumed Warrants is not exempt from registration or qualification under applicable state blue sky laws or the Company is unable
to effect such registration or qualification.
If the Company calls the public NioCorp Assumed Warrants
for redemption as described above, the Company will have the option to require any holder that wishes to exercise its public NioCorp Assumed
Warrant to do so on a “cashless basis.” In determining whether to require all holders to exercise their public NioCorp Assumed
Warrants on a “cashless basis,” the Company will consider, among other factors, its cash position, the number of NioCorp Assumed
Warrants that are outstanding and the dilutive effect on the Company’s shareholders of issuing the maximum number of Common Shares
issuable upon the exercise of the NioCorp Assumed Warrants. If the Company takes advantage of this option, all holders of public NioCorp
Assumed Warrants would pay the exercise price by surrendering their NioCorp Assumed Warrants for that number of Common Shares equal to
the quotient obtained by dividing (x) the product of the number of Common Shares underlying the public NioCorp Assumed Warrants, multiplied
by the difference between the exercise price of the NioCorp Assumed Warrants and the “fair market value” (defined below) by
(y) the fair market value. The “fair market value” shall mean the average reported last sale price of the Common Shares for
the 10 trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of public
NioCorp Assumed Warrants. If the Company takes advantage of this option, the notice of redemption will contain the information necessary
to calculate the number of Common Shares to be received upon exercise of the NioCorp Assumed Warrants, including the “fair market
value” in such case. Requiring a cashless exercise in this manner will reduce the number of Common Shares to be issued and thereby
lessen the dilutive effect of a redemption of the public NioCorp Assumed Warrants. If the Company calls the public NioCorp Assumed Warrants
for redemption and does not take advantage of this option, the Sponsor, its members, and their respective affiliates and other permitted
transferees would still be entitled to exercise their NioCorp Assumed Warrants for cash or on a cashless basis using the same formula
described above that other NioCorp Assumed Warrant holders would have been required to use had all NioCorp Assumed Warrant holders been
required to exercise their NioCorp Assumed Warrants on a cashless basis, as described in more detail below.
A holder of a NioCorp Assumed Warrant may notify the
Company in writing in the event it elects to be subject to a requirement that such holder will not have the right to exercise such NioCorp
Assumed Warrant, to the extent
that after giving effect to such exercise, such holder (together with such
holder’s affiliates), to the NioCorp Assumed Warrant Agent’s actual knowledge, would beneficially own in excess of 4.9% or
9.8% (or such other amount as a holder may specify) of the Common Shares outstanding immediately after giving effect to such exercise.
The NioCorp Assumed Warrants have certain anti-dilution
and adjustments rights upon certain events.
The NioCorp Assumed Warrants may be exercised upon
surrender of the certificate representing such NioCorp Assumed Warrants on or prior to the expiration date at the offices of the NioCorp
Assumed Warrant Agent, with the exercise form on the reverse side of such certificate completed and executed as indicated, accompanied
by full payment of the exercise price (or on a cashless basis, if applicable), by certified or official bank check payable to the order
of the NioCorp Assumed Warrant Agent or by wire transfer, for the number of NioCorp Assumed Warrants being exercised. The NioCorp Assumed
Warrant holders will not have the rights or privileges of holders of Common Shares or any attendant voting rights until they exercise
their NioCorp Assumed Warrants and receive Common Shares. After the issuance of Common Shares upon exercise of the NioCorp Assumed Warrants,
each holder will be entitled to one (1) vote for each Common Share held of record on all matters to be voted on by NioCorp shareholders.
If, upon exercise of the NioCorp Assumed Warrants,
a holder would be entitled to receive a fractional interest in a share, the Company will, upon exercise, round down to the nearest whole
number of Common Shares to be issued to the NioCorp Assumed Warrant holder.
The NioCorp Assumed Warrants were issued in registered
form under the NioCorp Assumed Warrant Agreement. The NioCorp Assumed Warrant Agreement may be amended by the parties thereto without
the consent of any registered holder (i) for the purpose of curing any ambiguity, or curing, correcting or supplementing any mistake,
or adding or changing any other provisions with respect to matters or questions arising under NioCorp Assumed Warrant Agreement as the
parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders of
the NioCorp Assumed Warrants, and (ii) to provide for the delivery of such kind and amount of Common Shares or other securities or property
(including cash) receivable upon a reclassification, reorganization, merger or consolidation, or upon a dissolution following any such
sale or transfer, that the holder of NioCorp Assumed Warrants would have received if such holder had exercised his, her or its NioCorp
Assumed Warrants immediately prior to such event. All other modifications or amendments, including any amendment to increase the warrant
price or shorten the exercise period, shall require the vote or written consent of the registered holders of a majority of the then outstanding
public NioCorp Assumed Warrants. Any amendment solely to the NioCorp Assumed Warrants issued to the Sponsor and that are held by the Sponsor,
its members, or their respective affiliates or other permitted transferees, shall require the vote or written consent of a majority of
the holders of the then outstanding NioCorp Assumed Warrants issued to the Sponsor.
Convertible Debentures
On January 26, 2023, NioCorp entered into the Yorkville
Convertible Debt Financing Agreement with YA. Pursuant to the Yorkville Convertible Debt Financing Agreement, YA advanced a total amount
of $15,360,000 to NioCorp in consideration of the issuance by NioCorp to YA of $16,000,000 aggregate principal amount of Convertible Debentures
at the time of Closing (the “Debenture Closing”).
Each Convertible Debenture issued under the Yorkville
Convertible Debt Financing Agreement is an unsecured obligation of NioCorp, has an 18-month term from the Debenture Closing, which may
be extended for one six-month period in certain circumstances at the option of NioCorp, and incurs a simple interest rate obligation of
5.0% per annum (which will increase to 15.0% per annum upon the occurrence of an event of default). The outstanding principal amount of,
accrued and unpaid interest, if any, on, and premium, if any, on the Convertible Debentures must be paid by NioCorp in cash when the same
becomes due and payable under the terms of the Convertible Debentures at their stated maturity, upon their redemption or otherwise.
Subject to certain limitations contained within the
Yorkville Convertible Debt Financing Agreement and the Convertible Debentures, including those as described below, holders of the Convertible
Debentures will be entitled to convert the principal amount of, and accrued and unpaid interest, if any, on each Convertible Debenture,
in whole or in part, from time to time over their term, into a number of Common Shares equal to the quotient of the principal
amount and accrued and unpaid interest, if any, being converted divided
by the Conversion Price. The “Conversion Price” means, as of any Conversion Date (as defined below) or other date of determination,
the greater of (i) 90% of the average of the daily U.S. dollar volume-weighted average price of the Common Shares on the principal U.S.
market for the Common Shares as reported by Bloomberg Financial Markets during the five consecutive trading days immediately preceding
the date on which the holder exercises its conversion right in accordance with the requirements of the Yorkville Convertible Debt Financing
Agreement (the “Conversion Date”) or other date of determination, but not lower than the Floor Price (as defined below), and
(ii) the five-day volume-weighted average price of the Common Shares on the TSX (or on the principal U.S. market if the majority of the
trading volume and value of the Common Shares occurred on Nasdaq during the relevant period) for the five consecutive trading days immediately
prior to the Conversion Date or other date of determination less the maximum applicable discount allowed by the TSX. The “Floor
Price” means a price of $2.1435 per share, which is equal to the lesser of (a) 30% of the average of the daily volume-weighted average
price of the Common Shares on the principal U.S. market for the Common Shares as reported by Bloomberg Financial Markets during the five
consecutive trading days immediately preceding the Debenture Closing and (b) 30% of the average of the volume-weighted average price of
the Common Shares on the principal U.S. market for the Common Shares as reported by Bloomberg Financial Markets during the five consecutive
trading days immediately following the Debenture Closing, subject to certain adjustments to give effect to any stock dividend, stock split,
reverse stock split, recapitalization or similar event.
The terms of the Convertible Debentures restrict the
number of Convertible Debentures that may be converted during each calendar month by YA at a Conversion Price below a fixed price equal
to the quotient of (i) $10.00 divided by (ii) 1.11829212 (being the number of Common Shares that were exchanged for each share of GXII
at the Closing, after giving effect to the Reverse Stock Split), subject to adjustment to give effect to any stock dividend, stock split,
reverse stock split, recapitalization or similar event. The Convertible Debentures are subject to customary anti-dilution adjustments.
The terms of the Convertible Debentures restrict the
conversion of Convertible Debentures by YA if such a conversion would cause YA to exceed certain beneficial ownership thresholds in NioCorp
or such a conversion would cause the aggregate number of Common Shares issued pursuant to the Yorkville Convertible Debt Financing Agreement
to exceed the thresholds for issuance of Common Shares under the rules of the TSX and Nasdaq, unless prior shareholder approval is obtained.
Financing Warrants
In conjunction with the Debenture Closing, NioCorp
issued to YA Financing Warrants to purchase 1,789,267 Common Shares, which is equal to the quotient of the principal amount of Convertible
Debentures issued in such Debenture Closing divided by the “Exercise Price,” which is equal to approximately $8.9422 (i.e.,
the quotient of $10.00 divided by 1.11829212 (being the number of Common Shares that were exchanged for each share of GXII at the Closing,
after giving effect to the Reverse Stock Split)), in each case, subject to adjustment to give effect to any stock dividend, stock split,
reverse stock split, recapitalization or similar event.
The Financing Warrants are exercisable, in whole or
in part, but not in increments of less than $50,000 aggregate Exercise Price (unless the remaining aggregate Exercise Price is less than
$50,000), beginning on the earlier of (a) six months following the issuance of the applicable Financing Warrants or (b) the effective
date of the initial registration statement registering under the Securities Act the resale of the Common Shares issuable upon conversion
of the Convertible Debentures and upon exercise of the Financing Warrants (the “Exercise Date”) and may be exercised at any
time prior to their expiration. Holders of the Financing Warrants may exercise their Financing Warrants, at their election, by paying
the Exercise Price in cash or, if at any time there is no effective registration statement registering, or no current prospectus available
for, the resale of the underlying Common Shares, on a cashless exercise basis. On each of the first 12 monthly anniversaries of the Exercise
Date, 1/12th of the Financing Warrants will expire.
The Financing Warrants have customary anti-dilution
adjustments to be determined in accordance with the requirements of the applicable stock exchanges, including the TSX.
The terms of the Financing Warrants
restrict the exercise of Financing Warrants by YA if such an exercise would cause YA to exceed certain beneficial ownership
thresholds in NioCorp or such an exercise would cause the aggregate number of Common Shares issued pursuant to the Yorkville
Convertible Debt Financing Agreement to exceed the thresholds for issuance of Common Shares under the rules of the TSX and
Nasdaq, unless prior shareholder approval is obtained.
CERTAIN UNITED
STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of certain
U.S. federal income tax considerations applicable to a U.S. Holder (as defined below) arising from and relating to the acquisition, ownership,
and disposition of the Common Shares. This summary is for general information purposes only and does not purport to be a complete analysis
or listing of all potential U.S. federal income tax considerations that may apply to a U.S. Holder arising from and relating to the acquisition,
ownership, and disposition of Common Shares. In addition, this summary does not take into account the individual facts and circumstances
of any particular U.S. Holder that may affect the U.S. federal income tax consequences to such U.S. Holder, including, without limitation,
specific tax consequences to a U.S. Holder under an applicable income tax treaty. Accordingly, this summary is not intended to be, and
should not be construed as, legal or U.S. federal income tax advice with respect to any U.S. Holder. This summary does not address any
tax consequences to U.S. Holders of the acquisition, ownership, and disposition of Common Shares arising from the U.S. federal alternative
minimum tax or the Medicare tax on investment income, U.S. federal estate, gift and other non-income taxes, U.S. state and local taxes,
or any non-U.S. tax. In addition, except as specifically set forth below, this summary does not discuss applicable tax reporting requirements.
Each prospective U.S. Holder should consult its own tax advisors regarding the U.S. federal, U.S. federal alternative minimum, U.S. federal
estate and gift, U.S. state and local, and non-U.S. tax consequences relating to the acquisition, ownership and disposition of the Common
Shares.
No legal opinion from U.S. legal counsel or
ruling from the IRS has been requested, or will be obtained, regarding the U.S. federal income tax consequences of the acquisition, ownership,
and disposition of the Common Shares. This summary is not binding on the IRS, and the IRS is not precluded from taking a position that
is different from, and contrary to, the positions taken in this summary. In addition, because the authorities on which this summary is
based are subject to various interpretations, the IRS and the U.S. courts could disagree with one or more of the conclusions described
in this summary.
Scope of this Summary
Authorities
This summary is based on the Code, Treasury
Regulations (whether final, temporary, or proposed), published rulings and administrative positions of the IRS, the Convention Between
Canada and the United States of America with Respect to Taxes on Income and on Capital, signed September 26, 1980, as amended (the “Canada-U.S.
Tax Convention”), and U.S. court decisions that are applicable, and, in each case, as in effect and available, as of the date of
this document. Any of the authorities on which this summary is based could be changed in a material and adverse manner at any time, and
any such change could be applied retroactively. This summary does not discuss the potential effects, whether adverse or beneficial, of
any proposed legislation.
U.S. Holders
For purposes of this summary, the term “U.S.
Holder” means a beneficial owner of Common Shares that is for U.S. federal income tax purposes:
| ● | an
individual who is a citizen or resident of the United States; |
| ● | a
corporation (or other entity treated as a corporation for U.S. federal income tax purposes)
organized under the laws of the United States, any state thereof or the District of Columbia; |
| ● | an
estate whose income is subject to U.S. federal income taxation regardless of its source;
or |
| ● | a
trust that (1) is subject to the primary supervision of a court within the U.S. and the control
of one or more U.S. persons for all substantial decisions or (2) has a valid election in
effect under applicable Treasury Regulations to be treated as a U.S. person. |
U.S. Holders Subject to Special U.S.
Federal Income Tax Rules Not Addressed
This summary does not address the U.S. federal
income tax considerations applicable to U.S. Holders that are subject to special provisions under the Code, including, but not limited
to, U.S. Holders that: (a) are tax-exempt organizations, qualified retirement plans, individual retirement accounts, or other tax-deferred
accounts; (b) are financial institutions, underwriters, insurance companies, real estate investment trusts, or regulated investment companies;
(c) are broker-dealers, dealers, or traders in securities or currencies that elect to apply a mark-to-market accounting method; (d) have
a “functional currency” other than the U.S. dollar; (e) own Common Shares as part of a straddle, hedging transaction, conversion
transaction, constructive sale, or other arrangement involving more than one position; (f) acquire Common Shares in connection with the
exercise of employee stock options or otherwise as compensation for services; (g) hold Common Shares other than as a capital asset within
the meaning of Section 1221 of the Code (generally, property held for investment purposes); or (h) own, have owned or will own (directly,
indirectly, or by attribution) 10% or more of the total combined voting power of the outstanding shares of the Company. This summary also
does not address the U.S. federal income tax considerations applicable to U.S. Holders who are: (a) U.S. expatriates or former long-term
residents of the U.S.; (b) persons that have been, are, or will be a resident or deemed to be a resident in Canada for purposes of the
Income Tax Act (Canada) (the “Tax Act”); (c) persons that use or hold, will use or hold, or that are or will be deemed to
use or hold Common Shares in connection with carrying on a business in Canada; (d) persons whose Common Shares constitute “taxable
Canadian property” under the Tax Act; or (e) persons that have a permanent establishment in Canada for the purposes of the Canada-U.S.
Tax Convention. U.S. Holders that are subject to special provisions under the Code, including, but not limited to, U.S. Holders described
immediately above, should consult their own tax advisors regarding tax consequences relating to the acquisition, ownership and disposition
of Common Shares.
If an entity or arrangement that is classified
as a partnership (or other “pass-through” entity) for U.S. federal income tax purposes holds Common Shares, the U.S. federal
income tax consequences to such entity or arrangement and the partners (or other owners or participants) of such entity or arrangement
generally will depend on the activities of the entity or arrangement and the status of such partners (or owners or participants). This
summary does not address the tax consequences to any such partner (or owner or participants). Partners (or other owners or participants)
of entities or arrangements that are classified as partnerships or as “pass-through” entities for U.S. federal income tax
purposes should consult their own tax advisors regarding the U.S. federal income tax consequences arising from and relating to the acquisition,
ownership, and disposition of Common Shares.
General Rules Applicable to the Ownership
and Disposition of Common Shares
Distributions on Common Shares
A U.S. Holder that receives a distribution,
including a constructive distribution, with respect to a Common Share will be required to include the amount of such distribution in gross
income as a dividend (without reduction for any Canadian income tax withheld from such distribution) to the extent of the current and
accumulated “earnings and profits” of the Company, as computed for U.S. federal income tax purposes. To the extent that a
distribution exceeds the current and accumulated “earnings and profits” of the Company, such distribution will be treated,
first, as a tax-free return of capital to the extent of a U.S. Holder’s tax basis in the Common Shares and thereafter as gain from
the sale or exchange of such Common Shares. However, the Company may not maintain the calculations of its earnings and profits in accordance
with U.S. federal income tax principles, and U.S. Holders may have to assume that any distribution by the Company with respect to the
Common Shares will constitute ordinary dividend income. Dividends received on Common Shares by a corporate U.S. Holder (other than certain
10% corporate shareholders) generally will not be eligible for a “dividends received deduction.” Provided that (1) the Company
is eligible for the benefits of the Canada-U.S. Tax Convention or (2) the Common Shares are readily tradable on a United States securities
market (and certain holding period and other conditions are satisfied), dividends paid by the Company to non-corporate U.S. Holders ,
including individuals, will be eligible for the preferential tax rates applicable to long-term capital gains for dividends unless the
Company is classified as a PFIC in the tax year of distribution or in the preceding tax year. See “—Passive Foreign Investment
Company Rules—Risk of PFIC Status for the Company” below. The dividend rules are complex, and each U.S. Holder should consult
its own tax advisors regarding the application of such rules.
Sales or Other Taxable Dispositions
of Common Shares
Upon the sale or other taxable disposition
of Common Shares, subject to the potential application of the PFIC rules as described below, a U.S. Holder generally will recognize capital
gain or loss in an amount equal to the difference between (i) the U.S. dollar value of cash received plus the fair market value of any
property received and (ii) such U.S. Holder’s adjusted tax basis in such Common Shares sold or otherwise disposed of. A U.S. Holder’s
tax basis in Common Shares generally will be determined initially by the holder’s U.S. dollar cost for the Common Shares (subject
to any adjustments provided under the PFIC rules, described below). Subject again to the PFIC rules, gain or loss recognized on such sale
or other disposition generally will be long-term capital gain or loss if, at the time of the sale or other disposition, the Common Shares
have been held for more than one year. Any gain or loss will generally be U.S. source for U.S. foreign tax credit purposes.
Preferential tax rates currently apply to long-term
capital gain of a U.S. Holder that is an individual, estate, or trust. There are currently no preferential tax rates for long-term capital
gain of a U.S. Holder that is a corporation. Deductions for capital losses are subject to significant limitations under the Code. If the
Company is determined to be a PFIC, any gain realized on the Common Shares could be ordinary income under the rules discussed below.
Passive Foreign Investment Company Rules
Risk of PFIC Status for the Company
If the Company were to constitute a PFIC under
the meaning of Section 1297 of the Code for any taxable year during a U.S. Holder’s holding period, then certain potentially adverse
U.S. federal income tax rules may apply to a U.S. Holder of Common Shares. While this summary cannot describe all of the potentially adverse
consequences that would result if the Company were treated as a PFIC for a relevant taxable year, certain material consequences and related
considerations are described below.
The Company believes that it was classified
as a PFIC during the tax years ended June 30, 2022 and 2021, and, based on the current composition of its income and assets, as well as
current business plans and financial expectations, may meet the PFIC qualification tests for its current tax year or in future tax years.
No opinion of legal counsel or ruling from the IRS concerning the PFIC status of the Company or any Subsidiary has been obtained or is
currently planned to be requested. The determination of whether any corporation was, or will be, a PFIC for a tax year depends, in part,
on the application of complex U.S. federal income tax rules, which are subject to differing interpretations. In addition, whether any
corporation will be a PFIC for any tax year depends on the assets and income of such corporation over the course of each such tax year
and, as a result, cannot be predicted with certainty as of the date of this document. In addition, even if the Company concluded that
it or any Subsidiary did not qualify as a PFIC, the IRS could challenge any determination made by the Company (or any subsidiary of the
Company) concerning its PFIC status in any taxable year, and a court could sustain such challenge. Accordingly, there can be no assurance
that the Company or any Subsidiary will not be treated as a PFIC for any taxable year. Each U.S. Holder should consult its own tax advisors
regarding the PFIC status of the Company and each subsidiary of the Company.
In any taxable year in which the Company is
classified as a PFIC, a U.S. Holder will be required to file an annual report with the IRS containing such information as Treasury Regulations
and/or other IRS guidance may require. IRS Form 8621 is currently used for such filings. In addition to penalties, a failure to satisfy
such reporting requirements may result in an extension of the time period during which the IRS can assess a tax. U.S. Holders should consult
their own tax advisors regarding the requirements of filing such information returns under these rules, including the requirement to file
an IRS Form 8621 annually.
The Company generally would be a PFIC for a
taxable year if, for such year, (a) 75% or more of the gross income of the Company is passive income (the “PFIC income test”)
or (b) 50% or more of the value of the Company’s assets either produce passive income or are held for the production of passive
income, based on the quarterly average of the fair market value of such assets (the “PFIC asset test”). “Gross income”
generally includes all sales revenues less the cost of goods sold, plus income from investments and from incidental or outside operations
or sources, and “passive income” generally includes, for example, dividends, interest, certain rents and royalties, certain
gains from the sale of stock and securities, and certain gains from commodities transactions.
Active business gains arising from the sale
of commodities generally are excluded from passive income if substantially all of a foreign corporation’s business is as an active
producer, processor, merchant or handler of commodities, and certain other requirements are satisfied.
For purposes of the PFIC income test and PFIC
asset test described above, if the Company owns, directly or indirectly, 25% or more of the total value of the outstanding shares of another
corporation, the Company will be treated as if it (a) held a proportionate share of the assets of such other corporation and (b) received
directly a proportionate share of the income of such other corporation. In addition, for purposes of the PFIC income test and PFIC asset
test described above, and assuming certain other requirements are met, “passive income” does not include certain interest,
dividends, rents, or royalties that are received or accrued by the Company from certain “related persons” (as defined in Section
954(d)(3) of the Code) also organized in Canada, to the extent such items are properly allocable to the income of such related person
that is neither passive income nor income connected with a U.S. trade or business.
Under certain attribution rules, if the Company
is a PFIC, U.S. Holders will generally be deemed to own their proportionate share of the Company’s direct or indirect equity interest
in any company that is also a PFIC (a “Subsidiary PFIC”), and will generally be subject to U.S. federal income tax on their
proportionate share of (a) any “excess distributions,” as described below, on the stock of a Subsidiary PFIC and (b) a disposition
or deemed disposition of the stock of a Subsidiary PFIC by the Company or another Subsidiary PFIC, both as if such U.S. Holders directly
held the shares of such Subsidiary PFIC. In addition, U.S. Holders may be subject to U.S. federal income tax on any indirect gain realized
on the stock of a Subsidiary PFIC on the sale or disposition of Common Shares. Accordingly, U.S. Holders should be aware that they could
be subject to tax under the PFIC rules even if no distributions are received on the Common Shares and no redemptions or other dispositions
of Common Shares are made.
Default PFIC Rules
If the Company is a PFIC for any tax year during
which a U.S. Holder owns Common Shares, the U.S. federal income tax consequences to such U.S. Holder of the acquisition, ownership, and
disposition of Common Shares will depend on whether and when such U.S. Holder makes an election to treat the Company and each Subsidiary
PFIC, if any, as a “qualified electing fund” (“QEF”) under Section 1295 of the Code (a “QEF Election”)
or makes a mark-to-market election under Section 1296 of the Code (a “Mark-to-Market Election”). A U.S. Holder that does not
make either a QEF Election or a Mark-to-Market Election will be referred to in this summary as a “Non-Electing U.S. Holder.”
A Non-Electing U.S. Holder will be subject
to the rules of Section 1291 of the Code (described below) with respect to (a) any gain recognized on the sale or other taxable disposition
of Common Shares and (b) any “excess distribution” received on the Common Shares. A distribution generally will be an “excess
distribution” to the extent that such distribution (together with all other distributions received in the current tax year) exceeds
125% of the average distributions received during the three preceding tax years (or during a U.S. Holder’s holding period for the
Common Shares, if shorter).
If the Company is a PFIC, under Section 1291
of the Code, any gain recognized on the sale or other taxable disposition of Common Shares (including an indirect disposition of the stock
of any Subsidiary PFIC), and any “excess distribution” received on Common Shares or deemed received with respect to the stock
of a Subsidiary PFIC, must be ratably allocated to each day in a Non-Electing U.S. Holder’s holding period for the respective Common
Shares. The amount of any such gain or excess distribution allocated to the tax year of disposition or distribution of the excess distribution,
or allocated to years before the entity became a PFIC, if any, would be taxed as ordinary income at the rates applicable for such year
(and not eligible for certain preferred rates). The amounts allocated to any other tax year would be subject to U.S. federal income tax
at the highest tax rate applicable to ordinary income in each such year. In addition, an interest charge would be imposed on the tax liability
for each such year, calculated as if such tax liability had been due in each such year. A Non-Electing U.S. Holder that is not a corporation
must treat any such interest paid as “personal interest,” which is not deductible.
If the Company is a PFIC for any tax year during
which a Non-Electing U.S. Holder holds Common Shares, the Company will continue to be treated as a PFIC with respect to such Non-Electing
U.S. Holder, regardless of whether the Company ceases to be a PFIC in one or more subsequent tax years. A Non-Electing U.S. Holder may
terminate
this deemed PFIC status by making a “purging” election
to recognize gain (which will be taxed under the rules of Section 1291 of the Code discussed above), but not loss, as if such Common Shares
were sold on the last day of the last tax year for which the Company was a PFIC.
In addition to the rules described above applying
to “excess distributions” and certain other dispositions of Common Shares, certain other adverse U.S. federal income tax rules
may apply with respect to a U.S. Holder if the Company is a PFIC, including in some cases even if the U.S. Holder makes a QEF Election
(as described below). Each U.S. Holder should consult its own tax advisors regarding the full tax consequences of potential PFIC status
for the Company and each subsidiary of the Company.
QEF Election
If the Company is a PFIC, a U.S. Holder that
makes a timely and effective QEF Election for the tax year in which the holding period of its Common Shares begins generally will not
be subject to the rules of Section 1291 of the Code discussed above with respect to such Common Shares. A U.S. Holder that makes such
a QEF Election will be subject to U.S. federal income tax on such U.S. Holder’s pro rata share (based on its ownership of Common
Shares) of (a) the net capital gain of the Company, which will be taxed as long-term capital gain to such U.S. Holder, and (b) the ordinary
earnings of the Company, which will be taxed as ordinary income to such U.S. Holder. Generally, “net capital gain” is the
excess of (a) net long-term capital gain over (b) net short-term capital loss, and “ordinary earnings” are the excess of (a)
“earnings and profits” over (b) net capital gain. A U.S. Holder that makes a QEF Election will be subject to U.S. federal
income tax on such amounts for each tax year in which the Company is a PFIC, regardless of whether such amounts are actually distributed
to such U.S. Holder by the Company. However, for any tax year in which the Company is a PFIC and has no net income or gain, U.S. Holders
that have made a QEF Election would not have any income inclusions as a result of the QEF Election. If a U.S. Holder that made a QEF Election
has an income inclusion, such a U.S. Holder may, subject to certain limitations, elect to defer payment of current U.S. federal income
tax on such amounts, subject to an interest charge. If such U.S. Holder is not a corporation, any such interest paid will be treated as
“personal interest,” which is not deductible.
A U.S. Holder that makes a timely and effective
QEF Election with respect to the Company generally (a) may receive a tax-free distribution from the Company to the extent that such distribution
represents “earnings and profits” of the Company that were previously included in income by the U.S. Holder because of such
QEF Election and (b) will adjust such U.S. Holder’s tax basis in the Common Shares to reflect the amount included in income or allowed
as a tax-free distribution because of such QEF Election. A U.S. Holder that makes a QEF Election generally will recognize capital gain
or loss on the sale or other taxable disposition of Common Shares.
A U.S. Holder may make a timely QEF Election
by filing the appropriate QEF Election documents (currently IRS Form 8621) at the time such U.S. Holder files a U.S. federal income tax
return for such year. If a U.S. Holder does not make a timely QEF Election for the first year in the U.S. Holder’s holding period
in which the Company is a PFIC, the U.S. Holder may still be able to make an effective QEF Election in a subsequent year if such U.S.
Holder meets certain requirements and makes a “purging” election to recognize gain (which will be taxed under the rules of
Section 1291 of the Code discussed above) as if such Common Shares were sold for their fair market value on the day the QEF Election is
effective. If a U.S. Holder makes a QEF Election but does not make a “purging” election to recognize gain as discussed in
the preceding sentence, then such U.S. Holder shall be subject to the QEF Election rules and shall continue to be subject to tax under
the rules of Section 1291 discussed above with respect to its Common Shares. If a U.S. Holder owns PFIC stock indirectly through another
PFIC, separate QEF Elections must be made for the PFIC in which the U.S. Holder is a direct shareholder and the Subsidiary PFIC for the
QEF rules to apply to both PFICs.
A QEF Election will apply to the tax year for
which such QEF Election is timely made and to all subsequent tax years, unless such QEF Election is invalidated or terminated or the IRS
consents to revocation of such QEF Election. If a U.S. Holder makes a QEF Election and, in a subsequent tax year, the Company ceases to
be a PFIC, the QEF Election will remain in effect (although it will not be applicable) during those tax years in which the Company is
not a PFIC. Accordingly, if the Company becomes a PFIC in another subsequent tax year, the QEF Election will be effective, and the U.S.
Holder will be subject to the QEF rules described above during any subsequent tax year in which the Company qualifies as a PFIC.
The Company will endeavor to provide U.S. Holders
with the required information to allow U.S. Holders to make a QEF Election with respect to the Common Shares in the event that the Company
determines it is treated as a PFIC for any taxable year. There can be no assurance, however, that the Company will timely provide such
information for any particular year, or that the Company’s determination regarding its PFIC status will be upheld. U.S. Holders
should consult their tax advisors to determine whether any of these QEF Elections will be available and if so, what the consequences of
these elections would be in their particular circumstances.
A U.S. Holder makes a QEF Election by attaching
a completed IRS Form 8621, including a PFIC Annual Information Statement, to a timely filed United States federal income tax return. However,
if the Company does not timely provide the required information with regard to the Company or any of its Subsidiary PFICs, U.S. Holders
may not be able to make a QEF Election for such entity and, unless they make the Mark-to-Market Election discussed in the next section,
will continue to be subject to the rules of Section 1291 of the Code discussed above that apply to Non-Electing U.S. Holders with respect
to the taxation of gains and excess distributions.
Mark-to-Market Election
A U.S. Holder may make a Mark-to-Market Election
only if the Common Shares are marketable stock. The Common Shares generally will be “marketable stock” if the Common Shares
are regularly traded on (a) a national securities exchange that is registered with the SEC, (b) the national market system established
pursuant to section 11A of the Exchange Act, or (c) a foreign securities exchange that is regulated or supervised by a governmental authority
of the country in which the market is located, provided that the foreign exchange meets certain trading volume and other requirements.
If such stock is traded on such a qualified exchange or other market, such stock generally will be “regularly traded” for
any calendar year during which such stock is traded, other than in de minimis quantities, on at least 15 days during each calendar quarter.
The Company expects that the Common Shares will meet the definition of “marketable stock,” although there can be no assurance
of this, especially as regards the required trading frequency.
If a U.S. Holder that makes a Mark-to-Market
Election for any taxable year with respect to its Common Shares, it generally will not be subject to the rules of Section 1291 of the
Code discussed above with respect to such Common Shares for such taxable year. However, if a U.S. Holder does not make a Mark-to-Market
Election beginning in the first tax year of such U.S. Holder’s holding period for which the Company is a PFIC and such U.S. Holder
has not made a timely QEF Election, the rules of Section 1291 of the Code discussed above will apply to dispositions of, and certain distributions
on, the Common Shares.
A U.S. Holder that makes a Mark-to-Market Election
will include in ordinary income, for each tax year in which the Company is a PFIC, an amount equal to the excess, if any, of (a) the fair
market value of the Common Shares, as of the close of such tax year over (b) such U.S. Holder’s adjusted tax basis in such Common
Shares. A U.S. Holder that makes a Mark-to-Market Election will be allowed a deduction in an amount equal to the excess, if any, of (a)
such U.S. Holder’s adjusted tax basis in the Common Shares, over (b) the fair market value of such Common Shares (but only to the
extent of the net amount of previously included income as a result of the Mark-to-Market Election for prior tax years).
A U.S. Holder that makes a Mark-to-Market Election
will also generally adjust its tax basis in the Common Shares to reflect the amount included in gross income or allowed as a deduction
because of such Mark-to-Market Election. Upon a sale or other taxable disposition of Common Shares, a U.S. Holder that makes a Mark-to-Market
Election will recognize ordinary income or ordinary loss (and such ordinary loss may be treated as capital or subject to limitations in
certain cases).
A U.S. Holder makes a Mark-to-Market Election
by attaching a completed IRS Form 8621 to a timely filed United States federal income tax return. A Mark-to-Market Election applies to
the tax year in which such Mark-to-Market Election is made and to each subsequent tax year, unless the Common Shares cease to be “marketable
stock” or the IRS consents to revocation of such election. Each U.S. Holder should consult its own tax advisors regarding the requirements
for, and procedure for making, a Mark-to-Market Election.
Although a U.S. Holder may be eligible to make
a Mark-to-Market Election with respect to the Common Shares, no such election may be made with respect to the stock of any Subsidiary
PFIC that a U.S. Holder is treated as owning, because such stock is not marketable. Hence, the Mark-to-Market Election will not be effective
to avoid
the application of the default rules of Section 1291 of the Code
described above with respect to deemed dispositions of Subsidiary PFIC stock or excess distributions from a Subsidiary PFIC to its shareholder.
AS THE PFIC RULES ARE COMPLEX AND UNCERTAIN, U.S. HOLDERS SHOULD
CONSULT WITH THEIR TAX ADVISORS TO DETERMINE THE POTENTIAL APPLICATION OF THE PFIC RULES TO THEM AND THEIR COMMON SHARES AND ANY RESULTANT
TAX CONSEQUENCES.
Additional Considerations
Receipt of Foreign Currency
The amount of any distribution paid to a U.S.
Holder in foreign currency, or on the sale, exchange or other taxable disposition of Common Shares, generally will be equal to the U.S.
dollar value of such foreign currency based on the exchange rate applicable on the date of receipt (regardless of whether such foreign
currency is converted into U.S. dollars at that time). A U.S. Holder will have a basis in the foreign currency equal to its U.S. dollar
value on the date of receipt. Any U.S. Holder who converts or otherwise disposes of the foreign currency after the date of receipt may
have a foreign currency exchange gain or loss that would be treated as ordinary income or loss, and generally will be U.S. source income
or loss for foreign tax credit purposes. Different rules apply to U.S. Holders who use the accrual method of tax accounting. Each U.S.
Holder should consult its own U.S. tax advisors regarding the U.S. federal income tax consequences of receiving, owning, and disposing
of foreign currency.
Foreign Tax Credit
Subject to the potential application of the
PFIC rules discussed above, a U.S. Holder that pays (whether directly or through withholding) Canadian income tax with respect to dividends
paid on the Common Shares generally will be entitled, at the election of such U.S. Holder, to receive either a deduction or a credit for
such Canadian income tax. Generally, a credit will reduce a U.S. Holder’s U.S. federal income tax liability on a dollar-for-dollar
basis, whereas a deduction will reduce a U.S. Holder’s income that is subject to U.S. federal income tax. This election is made
on a year-by-year basis and applies to all foreign taxes paid (whether directly or through withholding) by a U.S. Holder during a year.
Complex limitations apply to the foreign tax
credit, including the general limitation that the credit cannot exceed the proportionate share of a U.S. Holder’s U.S. federal income
tax liability that such U.S. Holder’s “foreign source” taxable income bears to such U.S. Holder’s worldwide taxable
income. In applying this limitation, a U.S. Holder’s various items of income and deduction must be classified, under complex rules,
as either “foreign source” or “U.S. source.” Generally, dividends paid on the Common Shares should be treated
as foreign source for this purpose, and gains recognized on the sale of Common Shares by a U.S. Holder should be treated as U.S. source
for this purpose, except as otherwise provided in an applicable income tax treaty, and if an election is properly made under the Code.
However, the amount of a distribution with respect to the Common Shares that is treated as a “dividend” may be lower for U.S.
federal income tax purposes than it is for Canadian federal income tax purposes, resulting in a reduced foreign tax credit allowance to
a U.S. Holder. In addition, this limitation is calculated separately with respect to specific categories of income. The foreign tax credit
rules are complex, and each U.S. Holder should consult its own U.S. tax advisors regarding the foreign tax credit rules.
Information Reporting and Backup Withholding
Certain U.S. Holders may be subject to certain
reporting obligations with respect to Common Shares if the aggregate value of these and certain other “specified foreign financial
assets” exceeds an applicable dollar threshold. If required, this disclosure is made by filing Form 8938 with the IRS. Significant
penalties can apply if a U.S. Holder is required to make this disclosure and fails to do so. In addition, a U.S. Holder should consider
the possible obligation to file online a FinCEN Form 114—Foreign Bank and Financial Accounts Report, as a result of holding Common
Shares in certain accounts. Holders are urged to consult their U.S. tax advisors with respect to these and other reporting requirements
that may apply to their acquisition of Common Shares.
Dividend payments (including constructive dividends)
with respect to Common Shares and proceeds from the sale, exchange or redemption of Common Shares may be subject to information reporting
to the IRS and possible United States backup withholding. Backup withholding (currently at a rate of 24%) will not apply, however, to
a
U.S. Holder who furnishes a correct taxpayer identification number
(generally on an IRS Form W-9 provided to the paying agent of the U.S. Holder’s broker) and makes other required certifications,
or who is otherwise exempt from backup withholding and establishes such exempt status. Backup withholding is not an additional tax. Any
amounts withheld under the U.S. backup withholding tax rules may be allowed as a credit against a U.S. Holder’s U.S. federal income
tax liability, if any, provided the required information is timely furnished to the IRS.
THE ABOVE SUMMARY IS NOT INTENDED TO CONSTITUTE A COMPLETE ANALYSIS
OF ALL TAX CONSIDERATIONS APPLICABLE TO U.S. HOLDERS WITH RESPECT TO THE ACQUISITION, OWNERSHIP, AND DISPOSITION OF COMMON SHARES. U.S.
HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE TAX CONSIDERATIONS APPLICABLE TO THEM IN THEIR OWN PARTICULAR CIRCUMSTANCES.
Certain Canadian
federal Income Tax Considerations for U.S. Residents
The following generally summarizes certain
Canadian federal income tax consequences generally applicable under the Income Tax Act (Canada) and the regulations enacted thereunder
(collectively, the “Canadian Tax Act”) and the Canada-United States Tax Convention (1980) (the “Convention”) to
the holding and disposition of Common Shares.
Comment is restricted to holders of Common
Shares each of whom, at all material times for the purposes of the Canadian Tax Act and the Convention, (i) is resident solely in the
United States for tax purposes, (ii) is a “qualifying person” under and entitled to the benefits of the Convention, (iii)
holds all Common Shares as capital property, (iv) holds no Common Shares that are “taxable Canadian property” (as defined
in the Canadian Tax Act) of the holder, (v) deals at arm’s length with and is not affiliated with NioCorp, (vi) does not and is
not deemed to use or hold any Common Shares in a business carried on in Canada, (vii) is not an insurer that carries on business in Canada
and elsewhere, and (viii) is not an “authorized foreign bank” (as defined in the Canadian Tax Act) (each such holder, a “U.S.
Resident Holder”).
Certain U.S.-resident entities that are fiscally
transparent for United States federal income tax purposes (including limited liability companies) may not in all circumstances be entitled
to the benefits of the Convention. Members of or holders of an interest in such an entity that holds Common Shares should consult their
own tax advisers regarding the extent, if any, to which the benefits of the Convention will apply to the entity in respect of its Common
Shares.
Generally, a U.S. Resident Holder’s Common
Shares will be considered to be capital property of such holder provided that the U.S. Resident Holder is not a trader or dealer in securities,
did not acquire, hold, or dispose of the Common Shares in one or more transactions considered to be an adventure or concern in the nature
of trade (i.e., speculation), and does not hold the Common Shares in the course of carrying on a business.
This summary is based on the current provisions
of the Canadian Tax Act and the Convention in effect on the date hereof, all specific proposals to amend the Canadian Tax Act and Convention
publicly announced by or on behalf of the Minister of Finance (Canada) on or before the date hereof, and the current published administrative
and assessing policies of the Canada Revenue Agency (the “CRA”). It is assumed that all such amendments will be enacted as
currently proposed, and that there will be no other material change to any applicable law or administrative or assessing practice, whether
by way of judicial, legislative or governmental decision or action, although no assurance can be given in these respects. This summary
is not exhaustive of all possible Canadian federal income tax considerations. Except as otherwise expressly provided, this summary does
not take into account any provincial, territorial, or foreign tax considerations, which may differ materially from those set out herein.
This summary is of a general nature only,
is not exhaustive of all possible Canadian federal income tax considerations, and is not intended to be and should not be construed as
legal or tax advice to any particular U.S. Resident Holder. U.S. Resident Holders are urged to consult their own tax advisers for advice
with respect to their particular circumstances. The discussion below is qualified accordingly.
Generally, a U.S. Resident Holder’s Common
Shares will not constitute “taxable Canadian property” of such holder at a particular time at which the Common Shares are
listed on a “designated stock exchange” (which currently includes the TSX and Nasdaq) unless both of the following conditions
are concurrently met:
| (i) | at any time during the 60-month period that ends at the particular time, 25% or more of the issued shares of any class of the capital
stock of NioCorp were owned by or belonged to one or any combination of |
| (A) | the U.S. Resident Holder, |
| (B) | persons with whom the U.S. Resident Holder did not deal at arm’s length, and |
| (C) | partnerships in which the U.S. Resident Holder or a person referred to in clause (B) holds a membership
interest directly or indirectly through one or more partnerships, and |
| (ii) | at any time during the 60-month period that ends at the particular time, more than 50% of the fair market value of the Common Shares
was derived directly or indirectly from, one or any combination of, real or immovable property situated in Canada, “Canadian resource
properties” (as defined in the Canadian Tax Act), “timber resource properties” (as defined in the Canadian Tax Act),
or options in respect of, or interests in any of the foregoing, whether or not the property exists. |
Common Shares may also be deemed to be “taxable
Canadian property” in certain circumstances set out in the Canadian Tax Act.
A U.S. Resident Holder who disposes or is deemed
to dispose of one or more Common Shares generally should not thereby incur any liability for Canadian federal income tax in respect of
any capital gain arising as a consequence of the disposition.
A U.S. Resident Holder to whom NioCorp pays or credits
or is deemed to pay or credit a dividend on such holder’s Common Shares will be subject to Canadian withholding tax, and NioCorp
will be required to withhold the tax from the dividend and remit it to the CRA for the holder’s account. The rate of withholding
tax under the Canadian Tax Act is 25% of the gross amount of the dividend, but should generally be reduced under the Convention to 15%
(or, if the U.S. Resident Holder is a company which is the beneficial owner of at least 10% of the voting stock of NioCorp, 5%) of the
gross amount of the dividend. For this purpose, a company that is a resident of the United States for purposes of the Canadian Tax Act
and the Convention and is entitled to the benefits of the Convention shall be considered to own the voting stock of NioCorp owned by an
entity that is considered fiscally transparent under the laws of the United States and that is not a resident of Canada, in proportion
to such company’s ownership interest in that entity.
PLAN OF DISTRIBUTION
We are registering the offer and sale of up
to an aggregate of 17,519,864 Common Shares, which are issuable upon the exercise of 15,666,626 outstanding NioCorp Assumed Warrants.
Subject to the terms of the NioCorp Assumed
Warrants, shares of our Common Stock will be issued to the NioCorp Assumed Warrant holders that elect to exercise and provide payment
of the exercise price (whether paid in cash or, if exercised on a cashless basis as permitted in certain circumstances in accordance with
the terms of the NioCorp Assumed Warrants and the NioCorp Assumed Warrant Agreement, surrender of cash and/or Common Shares into which
such NioCorp Assumed Warrants are exercisable). We do not know if or when any of the NioCorp Assumed Warrants will be exercised. We also
do not know if or when any of the Common Shares acquired upon exercise of any NioCorp Assumed Warrants will subsequently be resold. We
are not using an underwriter in connection with this offering.
The Common Shares being offered hereby will
not be qualified for distribution by prospectus in any jurisdiction of Canada, and may not be offered for sale, sold, assigned or transferred
in any jurisdiction of Canada except pursuant to a prospectus or exemption from the prospectus requirement under applicable securities
laws in Canada. We will not offer or sell any Common Shares directly or indirectly to any person whom, to our knowledge, is resident or
located in a jurisdiction of Canada or acquiring such Common Shares for the benefit of another person resident or located in a jurisdiction
of Canada, or on any “marketplace” (as such term is defined in National Instrument 21-101 Marketplace Operation) in
Canada.
LEGAL MATTERS
The validity of the Common Shares offered by
this prospectus will be passed upon for us by Blake, Cassels & Graydon LLP, Vancouver, British Columbia, Canada.
EXPERTS
The consolidated financial statements of NioCorp
Developments Ltd. as of June 30, 2022 and 2021 and for each of the three years in the period ended June 30, 2022, incorporated by reference
in this prospectus and in the registration statement have been so incorporated in reliance on the report of BDO USA, LLP, an independent
registered public accounting firm, incorporated herein by reference given on the authority of said firm as experts in auditing and accounting.
The report on the consolidated financial statements contains an explanatory paragraph regarding NioCorp Developments Ltd.’s ability
to continue as a going concern.
The financial statements of GX Acquisition
Corp. II as of December 31, 2022 and 2021 and for the years ended December 31, 2022 and 2021, have been audited by Marcum LLP, an independent
registered public accounting firm, as set forth in their report (which contains an explanatory paragraph relating to substantial doubt
about the ability of GX Acquisition Corp. II to continue as a going concern as described in Note 1 to GXII’s financial statements),
and are incorporated by reference in this prospectus and in the registration statement of which this prospectus is a part have been so
incorporated in reliance on such report given upon such firm as experts in auditing and accounting.
The technical report summary for the Elk Creek
Project prepared in accordance with subpart 1300 of Regulation S-K (the “S-K 1300 Elk Creek Technical Report Summary”), which
is incorporated by reference in this prospectus, and the information summarized or quoted from the S-K 1300 Elk Creek Technical Report
Summary included or incorporated by reference in this prospectus have been so included or incorporated by reference with the consent of
the following qualified persons, as such term is defined in Item 1300 of Regulation S-K, who prepared the S-K 1300 Elk Creek Technical
Report Summary and reviewed and approved such information summarized or quoted therefrom included or incorporated by reference in this
prospectus: Dahrouge Geological Consulting USA Ltd.; Understood Mineral Resources Ltd.; Optimize Group; Tetra Tech; Adrian Brown Consultants
Inc.; Metallurgy Concept Solutions; Magemi Mining Inc.; L3 Process Development; Olsson; A2GC; Scott Honan, M.Sc, SME-RM, NioCorp; Everett
Bird, P.E., Cementation; Matt Hales, P.E., Cementation; Mahmood Khwaja, P.E., CDM Smith; Martin Lepage, P.Eng, Cementation; and Wynand
Marx, M.Eng, BBE Consulting. A matrix of the sections of the S-K 1300 Elk Creek Technical Report Summary for which each qualified person
is responsible is included in the S-K 1300 Elk Creek Technical Report Summary. Except for Scott Honan, none of the qualified persons is
affiliated with NioCorp. Mr. Honan is the Chief Operating Officer of NioCorp.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution
The following table sets forth the fees and
expenses payable by us in connection with the sale and distribution of the securities being registered hereby. None of the expenses listed
below are to be borne by the selling shareholders named in the prospectus that forms a part of this registration statement. All amounts
are estimates, except for the SEC registration fee:
| |
Amount
to be paid |
| SEC
registration fee |
$ |
19,847.48 |
|
| Legal
fees and expenses* |
|
200,000.00 |
|
| Accounting
fees and expenses* |
|
40,000.00 |
|
| Printing
expenses* |
|
2,500.00 |
|
| Total |
$ |
262,347.48 |
|
| * | Except
for the SEC registration fee, estimated solely for the purposes of this Item 14. Actual expenses
may vary. |
Item 15. Indemnification of Directors and
Officers
The corporate laws of British Columbia allow
NioCorp, and its corporate articles require it (subject to the provisions of the BCBCA noted below and the undertakings provided in Item
17 below), to indemnify its directors, former directors, alternate directors and their heirs and legal personal representatives against
all eligible penalties to which such person is or may be liable, and NioCorp must, after the final disposition of an eligible proceeding,
pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director and alternate director is
deemed to have contracted with NioCorp on the terms of the indemnity contained in NioCorp’s articles.
For the purposes of such an indemnification:
| ● | “associated corporation” means a corporation or entity referred to in paragraph (2) or (3)
of the definition of “eligible party”: |
| ● | “eligible party,” in relation to NioCorp, means an individual who: |
| (1) | is or was a director or officer of NioCorp; |
| (2) | is or was a director or officer of another corporation: |
| (i) | at a time when the corporation is or was an affiliate of NioCorp; or |
| (ii) | at the request of NioCorp; or |
| (3) | at the request of NioCorp, is or was, or holds or held a position equivalent to that of, a director or officer of a partnership, trust,
joint venture or other unincorporated entity; and includes, except in the definition of “eligible proceeding” and certain
other cases, the heirs and personal or other legal representatives of that individual; |
| ● | “eligible penalty,” means a judgment, penalty or fine awarded or imposed in, or an amount
paid in settlement of, an eligible proceeding; |
| ● | “eligible proceeding” means a proceeding in which an eligible party or any of the heirs and
personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer
of, or holding or having held a position equivalent to that of a director or officer of, NioCorp or an associated corporation: |
| (1) | is or may be joined as a party; or |
| (2) | is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding; |
| ● | “expenses” includes costs, charges and expenses, including legal and other fees, but does
not include judgments, penalties, fines or amounts paid in settlement of a proceeding; and |
| ● | “proceeding” includes any legal proceeding including a civil, criminal, quasi-criminal, administrative
or regulatory action or proceeding; or investigative action, whether current, threatened, pending or completed. |
In addition, under the BCBCA, NioCorp may pay,
as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an
eligible party in respect of that proceeding, provided that NioCorp first receives from the eligible party a written undertaking that,
if it is ultimately determined that the payment of expenses is prohibited by the restrictions noted below, the eligible party will repay
the amounts advanced.
Notwithstanding the provisions of NioCorp’s
articles noted above, NioCorp must not indemnify an eligible party or pay the expenses of an eligible party, if any of the following circumstances
apply:
| ● | if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the
time that the agreement to indemnify or pay expenses was made, NioCorp was prohibited from giving the indemnity or paying the expenses
by its memorandum or articles; |
| ● | if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses
and, at the time that the indemnity or payment is made, NioCorp is prohibited from giving the indemnity or paying the expenses by its
memorandum or articles; |
| ● | if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly
and in good faith with a view to the best interests of NioCorp or the associated corporation, as the case may be; or |
| ● | in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have
reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful. |
In addition, if an eligible proceeding is brought
against an eligible party by or on behalf of NioCorp or by or on behalf of an associated corporation, NioCorp must not do either of the
following:
| ● | indemnify the eligible party under Section 160(a) of the BCBCA in respect of the proceeding; or |
| ● | pay the expenses of the eligible party in respect of the proceeding. |
Notwithstanding any of the foregoing, and whether
or not payment of expenses or indemnification has been sought, authorized or declined under the BCBCA or the articles of NioCorp, on the
application of NioCorp or an eligible party, the Supreme Court of British Columbia may do one or more of the following:
| ● | order NioCorp to indemnify an eligible party against any liability incurred by the eligible party in respect
of an eligible proceeding; |
| ● | order NioCorp to pay some or all of the expenses incurred by an eligible party in respect of an eligible
proceeding; |
| ● | order the enforcement of, or any payment under, an agreement of indemnification entered into by NioCorp; |
| ● | order NioCorp to pay some or all of the expenses actually and reasonably incurred by any person in obtaining
an order under Section 164 of the BCBCA; or |
| ● | make any other order the court considers appropriate. |
Item 16. Exhibits
Exhibit
No |
Description |
| 2.1(1) |
Business
Combination Agreement, dated as of September 25, 2022, by and among NioCorp Developments Ltd., Big Red Merger Sub Ltd, and GX Acquisition
Corp. II |
| 4.1(2) |
Notice
of Articles of NioCorp Developments Ltd., dated April 5, 2016 |
| 4.2(2) |
Articles
of NioCorp Developments Ltd., as amended, effective as of January 27, 2015 |
| 4.3(3) |
Amendment
to Articles, effective March 17, 2023 |
| 4.4(4) |
Warrant
Agreement, dated March 17, 2021, by and between GX Acquisition Corp. II and Continental Stock Transfer & Trust Company |
| 4.5(3) |
Assignment,
Assumption and Amendment Agreement, dated as of March 17, 2023, by and among GX Acquisition Corp. II, NioCorp Developments Ltd.,
Continental Stock Transfer & Trust Company, as the existing Warrant Agent, and Computershare Inc. and its affiliate Computershare
Trust Company, N.A., as the successor Warrant Agent |
| 4.6(3) |
Form
of Warrant (included in Exhibit 4.5) |
| 5.1 |
Opinion
of Blake, Cassels & Graydon LLP |
| 23.1 |
Consent
of Blake, Cassels & Graydon LLP (included in Exhibit 5.1) |
| 23.2 |
Consent of BDO USA, LLP |
| 23.3 |
Consent
of Marcum LLP |
| 23.4 |
Consent of Dahrouge Geological Consulting USA Ltd. |
| 23.5 |
Consent of Understood Mineral Resources Ltd. |
| 23.6 |
Consent of Optimize Group Inc. |
| 23.7 |
Consent of Tetra Tech |
| 23.8 |
Consent of Adrian Brown Consultants Inc. |
| 23.9 |
Consent of Magemi Mining Inc. |
| 23.10 |
Consent of L3 Process Development |
| 23.11 |
Consent of Olsson |
| 23.12 |
Consent of A2GC |
| 23.13 |
Consent of Metallurgy Concept Solutions |
| 23.14 |
Consent of Scott Honan, M.Sc., SME-RM, NioCorp |
| 23.15 |
Consent of Everett Bird, P.E., Cementation |
| 23.16 |
Consent of Matt Hales, P.E., Cementation |
| 23.17 |
Consent of Mahmood Khwaja, P.E., CDM Smith |
| 23.18 |
Consent of Martin Lepage, P.Eng., Cementation |
| 23.19 |
Consent of Wynand Marx, M.Eng., BBE Consulting |
| 24.1 |
Power
of Attorney, contained on signature page hereto |
| 96.1(5) |
S-K
1300 Elk Creek Technical Report Summary |
| 107 |
Filing Fee Table |
| (1) | Previously filed as an exhibit to the registrant’s Current Report on Form 8-K (File No. 000-55710) filed with the SEC on September
29, 2022 and incorporated herein by reference. |
| (2) | Previously filed as an exhibit to the registrant’s Draft Registration Statement on Form S-1 (Registration No. 377-01354) submitted
to the SEC on July 26, 2016 and incorporated herein by reference. |
| (3) | Previously filed as an exhibit to the registrant’s Current Report on Form 8-K (File No. 000-55710) filed with the SEC on March
17, 2023 and incorporated herein by reference. |
| (4) | Previously filed as an exhibit to Elk Creek Resources Corp.’s (f/k/a GX Acquisition Corp. II) Current Report on Form 8-K (File
No. 001-40226) filed with the SEC on March 22, 2021 and incorporated herein by reference. |
| (5) | Previously filed as an exhibit to the registrant’s Annual Report on Form 10-K (File No. 000-55710) filed with the SEC on September
6, 2022 and incorporated herein by reference. |
Item 17. Undertakings
The undersigned registrant hereby undertakes:
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum aggregate offering |
price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (6) | That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| (7) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Centennial, State of Colorado, on April 14, 2023.
| |
NIOCORP DEVELOPMENTS LTD. |
| |
|
| |
|
|
| |
By: |
/s/ Mark A. Smith |
| |
Name: |
Mark A. Smith |
| |
Title: |
President and Chief Executive Officer (Principal Executive Officer) |
| |
|
|
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
KNOW ALL PERSONS BY THESE PRESENTS, that each
of the directors and officers of the registrant whose signature appears below constitutes and appoints Mark A. Smith and Neal Shah, or
either of them, as true and lawful attorneys-in-fact and agents with full power of substitution and re-substitution, for him and in his
name, place and stead, in any and all capacities to sign this registration statement and any or all amendments to said registration statement
(including post-effective amendments and registration statements filed pursuant to Rule 462 and otherwise), and to file the same, with
all exhibits thereto, and other documents in connection therewith, the Securities and Exchange Commission granting unto said attorney-in-fact
and agents the full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the foregoing, as to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agents or any of them, or his substitute, may lawfully do or cause to be done by virtue hereof.
| |
President,
Chief Executive Officer (Principal |
|
/s/
Mark A. Smith |
Executive
Officer and Authorized U.S. Representative) |
April
14, 2023 |
| Mark
A. Smith |
and
Chairman of the Board of Directors |
|
| |
|
|
/s/
Neal Shah |
Chief
Financial Officer (Principal Financial and |
April
14, 2023 |
| Neal
Shah |
Accounting
Officer) |
|
| |
|
|
/s/
Michael J. Morris |
Director |
April
14, 2023 |
| Michael
J. Morris |
|
|
| |
|
|
/s/
David C. Beling |
Director |
April
14, 2023 |
| David
C. Beling |
|
|
| |
|
|
/s/
Anna Castner Wightman |
Director |
April
14, 2023 |
| Anna
Castner Wightman |
|
|
| |
|
|
/s/
Nilsa Guerrero-Mahon |
Director |
April
14, 2023 |
| Nilsa
Guerrero-Mahon |
|
|
| |
|
|
/s/
Fernanda Fenga |
Director |
April
14, 2023 |
| Fernanda
Fenga |
|
|
| |
|
|
/s/
Peter Oliver |
Director |
April
14, 2023 |
| Peter
Oliver |
|
|
| |
|
|
/s/
Dean C. Kehler |
Director |
April
14, 2023 |
| Dean
C. Kehler |
|
|
| |
|
|
/s/
Michael G. Maselli |
Director |
April
14, 2023 |
| Michael
G. Maselli |
|
|
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