Item 7.01 Regulation FD Disclosure.
As previously disclosed, on September 25, 2022, GX Acquisition Corp. II
("GXII"), NioCorp Developments Ltd. ("NioCorp"), 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.
Attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated
herein by reference is the form of an updated investor presentation to be used
by GXII and NioCorp to discuss the Transaction with certain of GXII's and
NioCorp's securityholders and other persons. 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 of 1933,
as amended (the "Securities Act"), or the Exchange Act.
Additional Information about the Proposed Transaction and Where to Find It
In connection with the proposed Transaction, NioCorp intends to file a
registration statement on Form S-4 (the "registration statement") with the U.S.
Securities and Exchange Commission ("SEC"), which will include 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.
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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, will be contained in the registration
statement and the joint proxy statement/prospectus (if and when available).
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
U.S. Securities Act) shall be made except by means of a prospectus meeting the
requirements of Section 10 of the Securities Act of 1933, as amended (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 and the information incorporated by reference
herein contain 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
execution of definitive agreements relating to the convertible debenture
transaction and the stand by equity purchase facility contemplated by the term
sheets with Yorkville Advisors Global, LP ("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. In addition, any
statements that refer to projections (including Averaged EBITDA, Averaged EBITDA
Margin and After-Tax Cumulative Net Free Cash Flow), forecasts or other
characterizations of future events or circumstances, including any underlying
assumptions, are forward-looking statements. 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.
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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 execution of definitive agreements relating to the convertible
debenture transaction and the stand by equity purchase facility contemplated by
the term sheets 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 business combination; 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
transactions due to, among other things, the failure to obtain NioCorp
shareholder approval or GXII shareholder approval or the execution of definitive
agreements relating to the convertible debenture transaction and the stand by
equity purchase facility contemplated by the term sheets with Yorkville; the
risk that the announcement and 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
. . .
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit Description
99.1 Investor Presentation, dated October 7, 2022
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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