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UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
January 26, 2023
NioCorp Developments
Ltd.
(Exact
name of registrant as specified in its charter)
British Columbia, Canada
(State or other jurisdiction
of incorporation) |
000-55710
(Commission File Number) |
98-1262185
(IRS Employer
Identification No.) |
7000 South Yosemite Street,
Suite 115
Centennial,
Colorado
80112
(Address of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code: (720)
639-4647
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
|
☒ |
Written communications pursuant to
Rule 425 under the Securities Act (17 CFR 230.425) |
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12) |
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
|
Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
|
Not
Applicable |
Not
Applicable |
Not
Applicable |
Indicate by
check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934
(§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ☐
|
Item 1.01 |
Entry into a Material Definitive Agreement. |
Yorkville Financings
On
January 26, 2023, NioCorp Developments Ltd. ("NioCorp") entered
into definitive agreements with respect to two previously announced
financings with YA II PN, Ltd., an investment fund managed by
Yorkville Advisors Global, LP (together with YA II PN, Ltd.,
“Yorkville”). The financings contemplated by the definitive
agreements include (i) up to $16,000,000 aggregate principal amount
of unsecured convertible debentures of NioCorp (the “Convertible
Debentures”) convertible into common shares of NioCorp (the “Common
Shares”) and Common Share purchase warrants (the “Financing
Warrants”) entitling the holders thereof to purchase additional
Common Shares (the “Yorkville Convertible Debt Financing”); and
(ii) a standby equity purchase facility pursuant to which NioCorp
will have the right, but not the obligation, subject to the
conditions set out therein, to sell Common Shares to Yorkville with
a maximum aggregate value of up to $65,000,000 over a period of up
to 36 months (the “Yorkville Equity Facility Financing” and,
together with the Yorkville Convertible Debt Financing, the
“Yorkville Financings”).
The
Yorkville Financings are expected to become effective on the date
of the closing (the “Closing”) of the Company’s proposed business
combination (the “Transaction”) with GX Acquisition Corp. II
(“GXII”), as previously announced on September 26, 2022. Once
completed, the Yorkville Financings could provide NioCorp with
access to up to an additional $80,360,000, before related fees and
expenses payable by NioCorp.
NioCorp intends to use the proceeds from the Yorkville Financings
to advance its efforts to launch construction of the Elk Creek
Project and move it to commercial operation, and to satisfy the
fees and expenses incurred in connection with the Transaction, if
required.
Completion of the Yorkville Financings is subject to certain
conditions, including the Closing of the Transaction, the receipt
of the approval of the Toronto Stock Exchange (the “TSX”) and the
approval of NioCorp’s shareholders in accordance with the rules of
the TSX.
Yorkville Convertible Debt Financing
On
January 26, 2023, NioCorp entered into a Securities Purchase
Agreement (the “Yorkville Convertible Debt Financing Agreement”),
by and between NioCorp and Yorkville. Pursuant to the Yorkville
Convertible Debt Financing Agreement, Yorkville, and any investor
that exercises its contractual right previously granted by NioCorp
to participate in the Yorkville Convertible Debt Financing
(collectively with Yorkville, the “Investors”), will advance an
initial total amount of $9,600,000 to NioCorp in consideration of
the issuance by NioCorp to the Investors of $10,000,000 aggregate
principal amount of Convertible Debentures at the time of Closing
(the “First Debenture Closing”), and an additional total amount of
$5,760,000 to NioCorp in consideration of the issuance by NioCorp
to the Investors of $6,000,000 aggregate principal amount of
Convertible Debentures on a date to be determined at the election
of NioCorp, but which may not be prior to the later to occur of (i)
the date of filing of the Convertible Debt Financing Registration
Statement (as defined below) and (ii) the date of Closing (together
with the First Debenture Closing, the “Debenture Closings”).
Each
Convertible Debenture issued under the Yorkville Convertible Debt
Financing will be an unsecured obligation of NioCorp, will have an
18-month term from the First Debenture Closing, which may be
extended for one six-month period in certain circumstances at the
option of NioCorp, and will incur 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 (“VWAP”) 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, unless NioCorp
consents to conversion at a lower price, and (ii) the five-day VWAP
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 the Nasdaq Capital Market (the “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. Notwithstanding
the foregoing, if at any time it shall be a condition to listing or
continued listing of the Common Shares on the Nasdaq or such other
principal U.S. market for the Common Shares that the Conversion
Price be not less than a minimum price (the “Floor Price”), then
NioCorp and the holders will negotiate in good faith to amend the
Convertible Debentures to provide that the Conversion Price shall
not be less than a Floor Price that satisfies such condition. Any
Floor Price will be subject to adjustment to give effect to any
stock dividend, stock split or recapitalization.
The
terms of the Convertible Debentures restrict the number of
Convertible Debentures that may be converted during each calendar
month by an Investor at a Conversion Price below a fixed price
equal to the quotient of (i) $10.00 divided by (ii) 11.1829212
(being the number of Common Shares that will be exchanged for each
share of GXII at the Closing), subject to adjustment to give effect
to any stock dividend, stock split or recapitalization. The
Convertible Debentures will be subject to customary anti-dilution
adjustments.
Pursuant to the terms of the Convertible Debentures, following
certain trigger events, and until a subsequent cure event, NioCorp
will be required to redeem $1,125,000 aggregate principal amount of
Convertible Debentures (the “Triggered Principal Amount”) each
month by making cash payments to the Investors, on a pro rata
basis, in an amount equal to the Triggered Principal Amount, plus
accrued and unpaid interest thereon, if any, plus a redemption
premium of 7% of the Triggered Principal Amount. Such monthly
prepayments under the terms of the Convertible Debentures are
triggered (i) at the time when NioCorp has issued 95% of the total
amount of Common Shares pursuant to the Yorkville Convertible Debt
Financing that it may issue under applicable TSX and Nasdaq rules
or (ii) when NioCorp has delayed or suspended the effectiveness or
use of the Convertible Debt Financing Registration Statement for
more than 20 consecutive calendar days, and such monthly prepayment
obligations will continue until, with respect to (i) above,
shareholder approval is obtained or, with respect to (ii) above,
the Investors may once again resell Common Shares under the
Convertible Debt Financing Registration Statement,
respectively.
The
Convertible Debentures may also be redeemed at NioCorp’s option at
any time and from time to time over their term at a redemption
price equal to 110% of the principal amount being redeemed, plus
accrued and unpaid interest, if any.
The
Convertible Debentures contain events of default customary for
instruments of their type (with customary grace periods, as
applicable) and provide that, upon the occurrence of an event of
default arising from certain events of bankruptcy or insolvency
with respect to NioCorp, all outstanding Convertible Debentures
will become due and payable immediately without further action or
notice. If any other type of event of default occurs and is
continuing, then any holder may declare all of its Convertible
Debentures to be due and payable immediately.
In
conjunction with each Debenture Closing, NioCorp will issue to the
Investors Financing Warrants to purchase a number of Common Shares
as 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 the greater of: (a) the
quotient of $10.00 divided by 11.1829212; or (b) the average of the
daily VWAPs of the Common Shares on the principal U.S. market for
the Common Shares during regular trading hours as reported by
Bloomberg Financial Markets during the five consecutive trading
days ending on the trading day immediately prior to such Debenture
Closing, in each case subject to any adjustment to give effect to
any stock dividend, stock split or recapitalization.
The
Financing Warrants will be 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 Convertible Debt Financing Registration
Statement (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 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 will 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 Convertible Debentures and the Financing Warrants
restrict the conversion of Convertible Debentures or exercise of
Financing Warrants by an Investor if such a conversion or exercise
would cause the Investor to exceed certain beneficial ownership
thresholds in NioCorp or such a conversion or exercise would cause
the aggregate number of Common Shares issued pursuant to the
Yorkville Convertible Debt Financing to exceed the thresholds for
issuance of Common Shares under the rules of the TSX and Nasdaq,
unless prior shareholder approval is obtained.
The
Yorkville Convertible Debt Financing Agreement contains customary
representations, warranties, conditions and indemnification
obligations by each party. The representations, warranties and
covenants contained in the Yorkville Convertible Debt Financing
Agreement were made only for purposes of the Yorkville Convertible
Debt Financing Agreement and as of specific dates, were solely for
the benefit of the parties to such agreement and are subject to
certain important limitations.
The
Yorkville Convertible Debt Financing Agreement also contains
certain covenants that, among other things, limit NioCorp’s ability
to use the proceeds from the Yorkville Convertible Debt Financing
to repay related party debt or to enter into any variable rate
transaction other than with Yorkville, subject to certain
exceptions.
The
Yorkville Convertible Debt Financing Agreement will terminate
automatically if the Business Combination Agreement, dated
September 25, 2022 (the “Business Combination Agreement”), by and
among NioCorp, GXII and Big Red Merger Sub Ltd, is terminated.
Also, the Investors will have the right to terminate the Yorkville
Convertible Debt Financing Agreement if the First Debenture Closing
does not occur on or prior to March 22, 2023. NioCorp will have the
right to terminate the Yorkville Convertible Debt Financing
Agreement at any time prior to the First Debenture Closing,
provided that it will be required to pay a cash termination fee of
$1,600,000 to the Investors, on a pro rata basis.
On
January 26, 2023, in connection with the Yorkville Convertible Debt
Financing Agreement, NioCorp and Yorkville also entered into a
registration rights agreement (the “Convertible Debt Financing
Registration Rights Agreement”) pursuant to which NioCorp has
agreed to file with the Securities and Exchange Commission (the
“SEC”) a registration statement (the “Convertible Debt Financing
Registration Statement”) registering the resale by the Investors of
the Common Shares issuable upon the conversion of the Convertible
Debentures and the exercise of the Financing Warrants under the
Securities Act of 1933 (the “Securities Act”), as soon as
practicable but no later than 21 calendar days following the
Closing, and to use its reasonable best efforts to have the
Convertible Debt Financing Registration Statement declared
effective as soon as practicable after the filing thereof, but in
no event later than the 45th calendar day following the filing date
thereof. NioCorp further agreed to use its reasonable best efforts
to cause the Convertible Debt Financing Registration Statement to
remain continuously effective for a period that will terminate upon
the first date on which all of the Common Shares issuable upon the
conversion of the Convertible Debentures and the exercise of the
Financing Warrants may be sold without restriction, including
volume and manner-of-sale restrictions, pursuant to Rule 144 under
the Securities Act or have been sold by Investors. NioCorp also
granted to the Investors certain demand rights for underwritten
shelf takedowns and piggyback registration rights with respect to
the Common Shares issuable upon the conversion of the Convertible
Debentures and the exercise of the Financing Warrants.
Yorkville Equity Facility Financing
On
January 26, 2023, NioCorp entered into a Standby Equity Purchase
Agreement, (the “Yorkville Equity Facility Financing Agreement”),
by and between NioCorp and Yorkville. Pursuant to the Yorkville
Equity Facility Financing Agreement, NioCorp will have the right,
but not the obligation, to sell Common Shares to Yorkville with a
maximum aggregate value of up to $65,000,000 (the “Commitment
Amount”) for a period commencing at the Closing of the Transaction
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 Yorkville 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"), and will issue to Yorkville
$650,000 aggregate principal amount of Common Shares for no
additional consideration. Additionally, NioCorp will pay to
Yorkville an aggregate fee of $1,500,000 in cash (the “Cash Fee”),
including $500,000 on the date of Closing and the remainder in
installments over a 12-month period following the date of the
Closing, provided that, NioCorp will have the right to prepay
without penalty all or part of the Cash Fee at any time. Each right
to sell Common Shares under the Yorkville Equity Facility Financing
Agreement is referred to as an “Advance.”
Subject to certain limitations, including those as described below,
and adjustments contained within the Yorkville Equity Facility
Financing Agreement, NioCorp will have the option to sell Common
Shares to Yorkville at a purchase price equal to (a) 97% of the
VWAP of the Common Shares on the principal U.S. market for the
Common Shares during the applicable pricing period, which is a
period during a single trading day defined based on when NioCorp
submits written notice (an “Advance Notice”) to Yorkville
exercising its right to an Advance (“Purchase Price Option #1”); or
(b) 97% of the average of the daily VWAPs of the Common Shares on
the principal U.S. market for the Common Shares during a pricing
period of three consecutive trading days commencing on the trading
day an Advance Notice is received by Yorkville, if it is received
by 9:30 a.m., New York City time, or the immediately following
trading day if it is received after 9:30 a.m., New York City time
(“Purchase Price Option #2”). Purchase Price Option # 2 will be
used whenever any Convertible Debentures issued to Yorkville
pursuant to the Yorkville Convertible Debt Financing Agreement are
outstanding, unless waived by Yorkville.
The
Yorkville Equity Facility Financing Agreement limits the number of
Common Shares that may be issued to Yorkville in each Advance to
the greater of (a) 5,000,000 Common Shares and (b) the number of
Common Shares equal to 100% of the average daily volume traded of
the Common Shares on the Nasdaq during the five trading days prior
to an Advance, provided that, if any Convertible Debentures are
outstanding when an Advance Notice is delivered, then the maximum
number of Common Shares that may be issued will be computed in
accordance with (b) only (the “Maximum Advance Amount”).
Notwithstanding this, NioCorp and Yorkville may agree to an
issuance of a number of Common Shares in excess of the Maximum
Advance Amount in any given Advance. Further, for as long as the
Convertible Debentures issued to Yorkville are outstanding, the
Yorkville Equity Facility Financing Agreement provides for certain
limitations on the amount of Advances that NioCorp may request,
including that NioCorp shall not effect more than two Advances in
any month. The Yorkville Equity Facility Financing Agreement also
restricts the sale of Common Shares to Yorkville if such a sale
would cause Yorkville to exceed certain beneficial ownership
thresholds in NioCorp or such issuance would cause the aggregate
number of Common Shares issued pursuant to the Yorkville Equity
Facility Financing to exceed the thresholds for issuance of Common
Shares under the rules of the TSX and Nasdaq, unless prior
shareholder approval is obtained.
Subject to certain other conditions, NioCorp may deliver an Advance
Notice only after the completion of the preceding Advance and only
so long as the Equity Facility Financing Registration Statement (as
defined below) is effective and Yorkville is permitted to utilize
the prospectus thereunder to resell all of the Common Shares
issuable pursuant to such Advance Notice. Pursuant to the Yorkville
Equity Facility Financing Agreement, NioCorp must prepare and file
with the SEC a registration statement registering the resale in the
United States of the Common Shares issuable pursuant to the
Yorkville Equity Facility Financing Agreement (the “Equity Facility
Financing Registration Statement”). Pursuant to the Yorkville
Equity Facility Financing Agreement, NioCorp in its sole discretion
may choose when to file the Equity Facility Financing Registration
Statement. Once effective, NioCorp has agreed to use its
commercially reasonable efforts to maintain the effectiveness of
the Equity Facility Financing Registration Statement at all times
until the earliest to occur of (i) receipt of notice that Yorkville
has completed resales of the full Commitment Amount pursuant to the
Equity Facility Financing Registration Statement, (ii) the 180th
day following the latest closing of an Advance that has occurred
and (iii) the 180th day following the termination of the Yorkville
Equity Facility Financing Agreement in accordance with its
terms.
The
Yorkville Equity Facility Financing Agreement contains customary
representations, warranties, conditions and indemnification
obligations by each party. The representations, warranties and
covenants contained in the Yorkville Equity Facility Financing
Agreement were made only for purposes of the Yorkville Equity
Facility Financing Agreement and as of specific dates, were solely
for the benefit of the parties to such agreement and are subject to
certain important limitations.
The
Yorkville Equity Facility Financing Agreement will terminate
automatically following the expiration of the Commitment Period. In
addition, the Yorkville Equity Facility Financing Agreement will
terminate automatically if the Business Combination Agreement is
terminated. Also, NioCorp will have the right to terminate the
Yorkville Convertible Debt Financing Agreement effective upon five
trading days' prior written notice to Yorkville, as long as there
are no outstanding unsettled Advances and provided that it will be
required to pay all amounts owed to Yorkville thereunder,
including, without limitation, any unpaid portion of the Cash Fee.
The parties may also terminate the Yorkville Equity Facility
Financing Agreement by mutual written consent.
The
Convertible Debentures, the Financing Warrants, the Common Shares
issuable upon conversion of the Convertible Debentures and upon
exercise of the Financing Warrants, the Common Shares issuable
pursuant to an Advance and the $650,000 worth of Common Shares
issuable to Yorkville for no additional consideration 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. Yorkville will not be
permitted to offer or sell any such securities directly or
indirectly to any person whom, to Yorkville's 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 in Canada.
The
foregoing descriptions of the terms of the Yorkville Convertible
Debt Financing Agreement (including the Convertible Debentures and
the Financing Warrants), the Convertible Debt Financing
Registration Rights Agreement, and the Yorkville Equity Facility
Financing Agreement are subject to, and qualified in their entirety
by, the text of the documents attached as Exhibits 4.1 (including
Exhibits 4.2 and 4.3), 4.4, and 10.1, respectively, to this Current
Report on Form 8-K, which documents are incorporated by reference
in their entirety into this Item 1.01.
|
Item 2.03 |
Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant. |
The
information provided in Item 1.01 of this Current Report on Form
8-K is incorporated herein by reference.
|
Item 3.02 |
Unregistered Sales of Equity Securities. |
The
information provided in Item 1.01 of this Current Report on Form
8-K is incorporated herein by reference.
|
Item 7.01 |
Unregistered Sales of Equity Securities. |
On January 26, 2023, NioCorp issued a
press release announcing the Yorkville Financings. A copy of the
press release is attached hereto as Exhibit 99.1 and incorporated
herein by reference. Such exhibit and the information set forth
therein shall not be deemed to be filed for purposes of Section 18
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or otherwise be subject to the liabilities of that section,
nor shall it be deemed to be incorporated by reference in any
filing under the Securities Act or the Exchange Act.
(d) Exhibits
Additional Information about the Proposed Transaction and Where
to Find It
In
connection with the proposed Transaction, NioCorp has filed a
registration statement on Form S-4 (the “registration statement”)
with the SEC, which includes a document that serves as a prospectus
and proxy circular of NioCorp and a proxy statement of GXII,
referred to as a “joint proxy statement/prospectus.” The definitive
joint proxy statement/prospectus will be filed with the SEC as part
of the registration statement and, in the case of NioCorp, with the
applicable Canadian securities regulatory authorities, and will be
sent to all NioCorp shareholders and GXII stockholders as of the
applicable record date to be established. Each of NioCorp and GXII
may also file other relevant documents regarding the proposed
Transaction with the SEC and, in the case of NioCorp, with the
applicable Canadian securities regulatory authorities. BEFORE
MAKING ANY VOTING OR INVESTMENT DECISION, INVESTORS AND SECURITY
HOLDERS OF NIOCORP AND GXII ARE URGED TO READ THE REGISTRATION
STATEMENT, THE DEFINITIVE JOINT PROXY STATEMENT/PROSPECTUS AND ALL
OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC
AND, IN THE CASE OF NIOCORP, WITH THE APPLICABLE CANADIAN
SECURITIES REGULATORY AUTHORITIES IN CONNECTION WITH THE PROPOSED
TRANSACTION, INCLUDING ANY AMENDMENTS OR SUPPLEMENTS TO THESE
DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
Investors and security holders will be able to obtain free copies
of the registration statement and the joint proxy
statement/prospectus (if and when available) and all other relevant
documents that are filed or that will be filed with the SEC by
NioCorp or GXII through the website maintained by the SEC at
www.sec.gov. Investors and security holders will be able to obtain
free copies of the joint proxy statement/prospectus (if and when
available) and all other relevant documents that are filed or that
will be filed with the applicable Canadian securities regulatory
authorities by NioCorp through the website maintained by the
Canadian Securities Administrators at www.sedar.com. The documents
filed by NioCorp and GXII with the SEC and, in the case of NioCorp,
with the applicable Canadian securities regulatory authorities also
may be obtained by contacting NioCorp at 7000 South Yosemite, Suite
115, Centennial CO 80112, or by calling (720) 639-4650; or GXII at
1325 Avenue of the Americas, 28th Floor, New York, NY 10019, or by
calling (212) 616-3700.
Participants in the Solicitation
NioCorp, GXII and certain of their respective directors, executive
officers and other members of management and employees may, under
SEC rules, be deemed to be participants in the solicitation of
proxies from NioCorp’s shareholders and GXII’s stockholders in
connection with the proposed Transaction. Information regarding the
executive officers and directors of NioCorp is included in its
management information and proxy circular for its 2021 annual
general meeting of shareholders filed with the SEC and the
applicable Canadian securities regulatory authorities on October
22, 2021. Information regarding the executive officers and
directors of GXII is included in its Annual Report on Form 10-K for
the year ended December 31, 2021, filed with the SEC on March 25,
2022. Additional information regarding the persons who may be
deemed to be participants in the solicitation, including
information regarding their interests in the proposed Transaction,
are contained in the registration statement and the joint proxy
statement/prospectus. NioCorp’s shareholders and GXII’s
stockholders and other interested parties may obtain free copies of
these documents free of charge by directing a written request to
NioCorp or GXII.
No
Offer or Solicitation
This
Current Report on Form 8-K and the information contained herein do
not constitute (i) (a) a solicitation of a proxy, consent or
authorization with respect to any securities or in respect of the
proposed Transaction or (b) an offer to sell or the solicitation of
an offer to buy any security, commodity or instrument or related
derivative, nor shall there be any sale of securities in any
jurisdiction in which the offer, solicitation or sale would be
unlawful prior to the registration or qualification under the
securities laws of any such jurisdiction or (ii) an offer or
commitment to lend, syndicate or arrange a financing, underwrite or
purchase or act as an agent or advisor or in any other capacity
with respect to any transaction, or commit capital, or to
participate in any trading strategies. No offer of securities in
the United States or to or for the account or benefit of U.S.
persons (as defined in Regulation S under the Securities Act) shall
be made except by means of a prospectus meeting the requirements of
Section 10 of the Securities Act, or an exemption therefrom.
Investors should consult with their counsel as to the applicable
requirements for a purchaser to avail itself of any exemption under
the Securities Act. In Canada, no offering of securities shall be
made except by means of a prospectus in accordance with the
requirements of applicable Canadian securities laws or an exemption
therefrom. This Current Report on Form 8-K is not, and under no
circumstances is it to be construed as, a prospectus, offering
memorandum, an advertisement or a public offering in any province
or territory of Canada. In Canada, no prospectus has been filed
with any securities commission or similar regulatory authority in
respect of any of the securities referred to herein.
Forward-Looking Statements
This
Current Report on Form 8-K contains forward-looking statements
within the meaning of the United States Private Securities
Litigation Reform Act of 1995 and forward-looking information
within the meaning of applicable Canadian securities laws.
Forward-looking statements may include, but are not limited to,
statements about NioCorp’s ability to close the Yorkville
Financings, including NioCorp being able to receive all required
regulatory and shareholder approvals for the Yorkville Financings;
the time at which the Yorkville Financings are expected to become
effective; the amount of funding that the Yorkville Financings
could provide to NioCorp; the intended use of the proceeds from the
Yorkville Financings; the advance amounts under the Yorkville
Convertible Debt Financing Agreement; the terms of each Convertible
Debenture; the interest rate of the Convertible Debentures; the
Conversion Price of the Convertible Debentures; the number of
Convertible Debentures that an Investor may convert; the number of
Financing Warrants that will be issued; the terms of the Financing
Warrants; the number and price of the Common Shares issuable under
the Yorkville Equity Financing Agreement; the payment of the Cash
Fee; the parties' ability to close the proposed Transaction,
including NioCorp and GXII being able to receive all required
regulatory, third-party and shareholder approvals for the proposed
Transaction; the anticipated benefits of the proposed Transaction,
including the potential amount of cash that may be available to the
combined company upon consummation of the proposed Transaction and
the use of the net proceeds following the redemptions by GXII
public shareholders; NioCorp's expectation that the Common Shares
will be accepted for listing on the Nasdaq following the Closing of
the proposed Transaction; NioCorp's planned exploration activities;
and NioCorp's ability to secure sufficient project financing to
complete construction and commence operation of the Elk Creek
Project. Forward-looking statements are typically identified by
words such as “plan,” “believe,” “expect,” “anticipate,” “intend,”
“outlook,” “estimate,” “forecast,” “project,” “continue,” “could,”
“may,” “might,” “possible,” “potential,” “predict,” “should,”
“would” and other similar words and expressions, but the absence of
these words does not mean that a statement is not
forward-looking.
The
forward-looking statements are based on the current expectations of
the management of NioCorp, and are inherently subject to
uncertainties and changes in circumstances and their potential
effects and speak only as of the date of such statement. There can
be no assurance that future developments will be those that have
been anticipated. Forward-looking statements reflect material
expectations and assumptions, including, without limitation,
expectations and assumptions relating to: the future price of
metals; the stability of the financial and capital markets; NioCorp
and GXII being able to receive all required regulatory, third-party
and shareholder approvals for the proposed Transaction; the amount
of redemptions by GXII public shareholders; NioCorp being able to
receive all required regulatory and shareholder approvals for the
Yorkville Financings; and other current estimates and assumptions
regarding the proposed Transaction and its benefits. Such
expectations and assumptions are inherently subject to
uncertainties and contingencies regarding future events and, as
such, are subject to change. Forward-looking statements involve a
number of risks, uncertainties or other factors that may cause
actual results or performance to be materially different from those
expressed or implied by these forward-looking statements. These
risks and uncertainties include, but are not limited to, those
discussed and identified in public filings made by NioCorp and GXII
with the SEC and, in the case of NioCorp, with the applicable
Canadian securities regulatory authorities and the following: the
amount of any redemptions by existing holders of GXII Class A
shares being greater than expected, which may reduce the cash in
trust available to NioCorp upon the consummation of the
Transaction; the occurrence of any event, change or other
circumstances that could give rise to the termination of the
Business Combination Agreement and/or payment of the termination
fees; the outcome of any legal proceedings that may be instituted
against NioCorp or GXII following announcement of the Business
Combination Agreement and the transactions contemplated therein;
the inability to complete the proposed Transaction due to, among
other things, the failure to obtain NioCorp shareholder approval or
GXII shareholder approval; the inability to complete the Yorkville
Financings due to, among other things, the failure to obtain
shareholder approval or regulatory approval; the risk that the
consummation of the proposed transactions disrupts NioCorp’s
current plans; the ability to recognize the anticipated benefits of
the proposed transactions; unexpected costs related to the proposed
transactions; the risks that the consummation of the proposed
transactions is substantially delayed or does not occur, including
prior to the date on which GXII is required to liquidate under the
terms of its charter documents; NioCorp’s ability to operate as a
going concern; NioCorp’s requirement of significant additional
capital; NioCorp’s limited operating history; NioCorp’s history of
losses; 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; changes in demand for and
price of commodities (such as fuel and electricity) and currencies;
changes or disruptions in the securities markets; legislative,
political or economic developments; the need to obtain permits and
comply with laws and regulations and other regulatory requirements;
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 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
any of the assumptions made by the management of NioCorp prove
incorrect, actual results may vary in material respects from those
projected in these forward-looking statements.
All
subsequent written and oral forward-looking statements concerning
the proposed Business Combination and Yorkville Financings or other
matters addressed in this Current Report on Form 8-K and
attributable to NioCorp or any person acting on their behalf are
expressly qualified in their entirety by the cautionary statements
contained or referred to in this Current Report on Form 8-K. Except
to the extent required by applicable law or regulation, NioCorp
undertakes no obligation to update these forward-looking statements
to reflect events or circumstances after the date of this Current
Report on Form 8-K to reflect the occurrence of unanticipated
events.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
| |
NIOCORP
DEVELOPMENTS LTD. |
| |
|
|
| DATE: January 26,
2023 |
By: |
/s/ Neal S. Shah |
| |
|
Neal
S. Shah
Chief Financial Officer
|
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