| 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.