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): February 13, 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 8.01 Other Events.
As previously disclosed, on September 25, 2022, NioCorp Developments Ltd. (“NioCorp”), GX Acquisition Corp. II (“GXII”), and Big Red Merger Sub Ltd, a direct, wholly owned subsidiary of NioCorp, entered into a business combination agreement (the “Business Combination Agreement”). As a result of the transactions contemplated by the Business Combination Agreement (collectively, the “Transaction”), GXII will become a subsidiary of NioCorp.
This Current Report on Form 8-K is being filed by NioCorp to update and supplement the definitive joint proxy statement/prospectus filed by NioCorp with the U.S. Securities and Exchange Commission (the “SEC”), declared effective on February 8, 2023 and mailed to NioCorp shareholders on or about February 10, 2023, with certain supplemental proxy materials filed by GXII (the “GXII Supplement”) with the SEC relating to GXII’s special meeting of its stockholders being held in connection with the Transaction. The GXII Supplement is attached hereto as Exhibit 99.1 and incorporated by reference herein.
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 has been 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. 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 definitive joint proxy statement/prospectus 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 definitive 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 definitive 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.
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 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 its common shares will be accepted for listing on the Nasdaq Stock Market following the closing of the proposed Transaction; the consummation of the convertible debenture transaction and the stand-by equity purchase facility contemplated
by the definitive agreements with YA II PN, Ltd., an investment fund managed by Yorkville Advisors Global, LP (together with YA II PN, Ltd., “Yorkville”); 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 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 GXII, as applicable, 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; the consummation of the convertible debenture transaction and the stand-by equity purchase facility contemplated by the definitive agreements with Yorkville; 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 Transaction; the inability to complete the proposed Transaction due to, among other things, the failure to obtain NioCorp shareholder approval or GXII shareholder approval or the consummation of the convertible debenture transaction and the stand-by equity purchase facility contemplated by the definitive agreements with Yorkville; the inability to complete the convertible debenture transaction and the stand-by equity purchase facility contemplated by the definitive agreements with Yorkville due to, among other things, the failure to obtain shareholder approval or regulatory approval; the risk that the announcement and consummation of the proposed Transaction disrupts NioCorp’s current plans; the ability to recognize the anticipated benefits of the proposed Transaction; unexpected costs related to the proposed Transaction; the risks that the consummation of the proposed Transaction 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 and GXII 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 Transaction or other matters addressed in this Current Report on Form 8-K and attributable to NioCorp, GXII 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 and GXII undertake 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.
Item 9.01 Exhibits
| Exhibit | Description | |
| 99.1 | Supplement to Definitive Proxy Statement of GX Acquisition Corp. II | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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: February 13, 2023 | By: | /s/ Neal S. Shah |
|
Neal S. Shah Chief Financial Officer | ||
Exhibit 99.1
GX ACQUISITION CORP. II
1325 Avenue of the Americas, 28th Floor
New York, New York 10019
SUPPLEMENT TO
DEFINITIVE PROXY STATEMENT, DATED FEBRUARY 8, 2023,
FOR THE
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON MARCH 15, 2023
Explanatory Note
On February 8, 2023, GX Acquisition Corp. II, a Delaware corporation (“GX” or the “Company”) filed its definitive proxy statement (the “Definitive Proxy Statement”) with the U.S. Securities and Exchange Commission relating to GX’s special meeting of its stockholders (the “Special Meeting”), which will be held on March 15, 2023 at 10:30 a.m., Eastern time, at the following address: https://www.cstproxy.com/gx2/2023. GX is providing this supplement to the Definitive Proxy Statement (the “Supplement”) solely to clarify that (i) the approval of the non-binding, advisory Proposal No. 3 and the non-binding, advisory Proposal No. 4 of the Charter Proposal each require the affirmative vote (in person online or by proxy) of (a) the holders of a majority of outstanding GX Class A Shares on the record date voting as a single class, (b) the holders of a majority of outstanding GX Founder Shares on the record date voting together as a single class, and (c) the holders of a majority of outstanding GX Class A Shares and GX Founder Shares on the record date voting together as a single class, which appears on pages 25, 44, 132 and 146 of the Definitive Proxy Statement, (ii) each GX Proposal other than the Adjournment Proposal is conditioned on the approval of each other GX Proposal other than the Charter Proposal, as a non-binding, advisory proposal, and the Adjournment Proposal, which appears on the third page of the Notice of Special Meeting of Stockholders of GX Stockholders and pages 9, 16, 68 and 139 of the Definitive Proxy Statement, and (iii) GX will not use the proceeds placed in the Trust Account and the interest earned thereon to pay any excise tax imposed under the Inflation Reduction Act of 2022 (“IR Act”) on any redemptions or stock buyback by GX, which appears on pages 64 and F-30 of the Definitive Proxy Statement. As further described below, the corrections are consistent with the disclosure regarding the Charter Proposal that appears elsewhere in the Definitive Proxy Statement, including with respect to the full description of such proposal.
Correction
The corrections are marked below, with new text in bold and underline and deleted text in bold and strikethrough, and are being made with respect to the above-referenced locations in the Definitive Proxy Statement.
Correction #1:
The approval of each of Proposal No. 3 and Proposal No. 4 of the Charter Proposal requires the affirmative vote (in person online or by proxy) of (i) the holders of a majority of outstanding GX Class A Shares on the record date voting together as a single class, (ii) the holders of a majority of outstanding GX Founder Shares on the record date voting together as a single class and (iii) the holders of a majority of outstanding GX Class A Shares and GX Founder Shares on the record date voting together as a single class. The approval of the remaining proposals of the Charter Proposal requires the affirmative vote (in person online or by proxy) of the holders of a majority of all then outstanding shares of GX Common Stock entitled to vote thereon at the GX Stockholder Meeting, including the affirmative vote of a majority of the outstanding GX Founder Shares, voting separately as a single class.
Correction #2:
We may not consummate the Transactions unless
each of the Business Combination Proposal, and the Charter Amendment Proposal and the Charter
Proposal is approved at the GX Stockholder Meeting. Each GX Proposal other than the Adjournment Proposal is conditioned on
the approval of each other GX Proposal other than the Charter Proposal, which is a non-binding, advisory proposal, and the
Adjournment Proposal. The Adjournment
Proposal is not conditioned on the approval of any other GX Proposal set forth in the accompanying joint proxy statement/prospectus.
Correction #2 is consistent with the Company’s full description of the Charter Proposal contained under the heading “GX Proposal No. 3 Through No. 9 — The Charter Proposal” on page 142 of the Definitive Proxy Statement.
Correction #3:
Any redemption or other repurchase that occurs
after December 31, 2022, in connection with a Redemption Event may be subject to the excise tax. Whether and to what extent GX would
be subject to the excise tax in connection with a Redemption Event would depend on a number of factors, including (i) the fair market
value of the redemptions and repurchases in connection with the Redemption Event, (ii) the structure of the business combination,
(iii) the nature and amount of any “PIPE” or other equity issuances in connection with the business combination (or otherwise
issued not in connection with the Redemption Event but issued within the same taxable year of the business combination) and (iv) the
content of regulations and other future guidance from the Treasury. Nonetheless, we will not use the proceeds placed in the Trust
Account and the interest earned thereon to pay any excise tax imposed under the IR Act on any redemptions or stock buybacks by GX.
In addition, because the excise tax would be payable by GX, and not by the redeeming holder, the mechanics of any required payment
of the excise tax have not been determined. The foregoing could cause a reduction in the cash available on hand to complete a business
combination and in GX’s ability to complete a business combination, including the Transactions.
All the other information in the Definitive Proxy Statement and the proxy card remains unchanged. We have not changed or added to the matters to be considered by our stockholders at the Special Meeting, and this Supplement does not change the recommendation of our board of directors with respect to the Charter Proposal or any of the other proposals described in the Definitive Proxy Statement.
Review of Supplement and Proxy Statement
The corrected disclosures above should be read in conjunction with the disclosures contained in the Definitive Proxy Statement, which should be read in its entirety. To the extent the information set forth herein differs from or updates information contained in the Definitive Proxy Statement, the information set forth herein shall supersede or supplement the information in the Definitive Proxy Statement. All page and paragraph references used herein refer to the Definitive Proxy Statement before any additions or deletions resulting from the revised disclosures, and capitalized terms used but not otherwise defined in this Supplement have the meanings set forth in the Definitive Proxy Statement. From and after the date of this Supplement, any references to the “definitive proxy statement” are to the Definitive Proxy Statement as supplemented hereby.
Voting and Submitting Your Proxy
For stockholders who have already voted, a previous vote in favor of Proposal No. 3 and Proposal No. 4 will be counted as a vote in favor of such proposal, as corrected by this Supplement, and a previous vote against Proposal No. 3 and Proposal No. 4 will be counted as a vote against such proposal, unless, in each case, the original proxy is revoked by the stockholder, which can be done by submitting a new proxy.
If you have not yet voted, please vote promptly. Our stockholders may vote electronically at the Special Meeting by visiting https://www.cstproxy.com/gx2/2023 or by proxy. If you properly complete, sign and date your proxy card previously mailed to you, your shares will be voted in accordance with your instructions. We are not mailing a revised proxy card to our stockholders prior to the Special Meeting and the original proxy card remains valid. The named proxies will vote all shares at the meeting for which proxies have been properly submitted and not revoked. If you sign and return your proxy card but do not mark your card to tell the proxies how to vote, your shares will be voted “FOR” the proposals to adopt the Business Combination Agreement and the other proposals presented at the Special Meeting.
We recommend that you submit your proxy even if you plan to virtually attend the Special Meeting. If you vote by proxy, you may change your vote by submitting a later dated proxy before the deadline or by voting electronically at the Special Meeting. Voting instructions are printed on the proxy card or voting information form you received. Either method of submitting a proxy will enable your shares to be represented and voted at the Special Meeting.
You may attend the special meeting online, vote, view the list of stockholders entitled to vote at the special meeting and submit your questions during the special meeting by visiting https://www.cstproxy.com/gx2/2023 and entering your 12-digit control number, which is either included on the proxy card you received or obtained through Continental Stock Transfer & Trust Company.
If you need assistance in completing your proxy card or have questions regarding the special meeting, you may call Morrow, the proxy solicitation agent for the Company, at (800) 662-5200 (toll free) or banks and brokers can call collect at (203) 658-9400, or by emailing GXII.info@investor.morrowsodali.com.