SHARE EXCHANGE AGREEMENT
DATED AS OF
FEBRUARY 24TH, 2015
BY AND among
T-Xxx Oil, Inc.
AND
WESTERN INTERIOR OIL & GAS CORP.
AND
ITS SHAREHOLDERS
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, dated as of February 24th, 2015, (the
"Agreement"), by and among T-Xxx Oil, Inc., a Colorado Corporation, ("TRO"), and
Western Interior Oil & Gas Corp. ("WIOG" or "Acquiree") a Wyoming corporation,
and the Shareholders of WIOG, who join in this Agreement ("Shareholders").
WHEREAS, the Board of Directors of TRO and Acquiree, respectively, have
each approved, as being in the best interest of the respective entities and
their stockholders, the Acquisition of WIOG by TRO, in accordance with the
applicable provisions of the Colorado Business Corporation Laws;
WHEREAS, TRO, Shareholders and Acquiree desire to make certain
representations, warranties, covenants and agreements in connection with the
Acquisition and also to prescribe various conditions to the Exchange; and
WHEREAS, this Agreement is intended to set forth the terms upon which
WIOG will be acquired by TRO from Shareholders of WIOG.
WHEREAS, WIOG is the holder of Assets pertaining to Oil and Gas
Production, Acquisition of properties, and management of them, including but not
limited to Cash, Bonds, Wells, Oil and Gas leasehold, Regulatory Permits,
Pending leases, Royalty, Overriding royalty, Mineral interests, Surface
facilities, Equipment, Vehicles, Geologic materials, Engineering studies, and
Title work.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
ARTICLE I
DEFINITIONS
"Affiliate" shall mean (a) with respect to an individual, any member of
such individual's family including lineal ancestors and descendents; (b) with
respect to an entity, any officer, director, stockholder, partner, manager,
investor or holder of an ownership shares of or in such entity or of or in any
Affiliate of such entity; and (c) with respect to a Person, any Person which
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with such Person or entity.
"Acquiree" shall have the meaning set forth in the preamble to this
Agreement.
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"Acquiree" shall have the meaning set forth in the recitals to this
Agreement, and elsewhere " WIOG Material Adverse Effect" shall mean an event or
change, individually or in the aggregate with other events or changes, that
could reasonably be expected to have a material adverse effect on (a) the
business, properties, prospects, condition (financial or otherwise) or results
of operations of WIOG taken as a whole (other than those events, changes or
effects resulting from general economic conditions or the industry in which
Acquiree is engaged generally) or (b) the ability of Acquiree to consummate the
transactions contemplated hereby.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Certificates" shall have the meaning set forth in Section 2.04 of this
Agreement.
"Closing" shall have the meaning set forth in Section 3.01 of this
Agreement.
"Closing Date" shall have the meaning set forth in Section 3.01 of this
Agreement.
"Code" shall have the meaning set forth in the recitals of this
Agreement.
"Contingent Obligation" as to any Person shall mean the undrawn face
amount of any letters of credit issued for the account of such Person and shall
also mean any obligation of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness, leases, dividends, letters of credit or
other obligations ("Primary Obligations") of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such Primary Obligation or any property constituting direct or
indirect security therefore, (b) to advance or supply funds (i) for the purchase
or payment of any such Primary Obligation or (ii) to maintain working capital or
equity capital of the Primary Obligor or otherwise to maintain the financial
condition or solvency of the Primary Obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the obligee under
any such Primary Obligation of the ability of the Primary Obligor to make
payment of such Primary Obligation, or (d) otherwise to assure or hold harmless
the obligee under such Primary Obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.
"Contracts" shall mean all contracts, leases, subleases, notes, bonds,
mortgages, indentures, Permits and Licenses, non-competition agreements, joint
venture or partnership agreements, powers of attorney, purchase orders, and all
other agreements, arrangements and other instruments, in each case whether
written or oral, to which such Person is a party or by which any of them or any
of its assets are bound.
"Effective Time" shall be the date all conditions and performance
hereunder has been completed but no later than March 31, 2015.
"End Date" shall have the meaning set forth in Section 9.01 of this
Agreement.
"Exchange" shall have the meaning set forth in the recitals of this
Agreement.
"TRO" shall have the meaning set forth in the preamble to this
Agreement.
"TRO Common Stock" shall have the meaning set forth in the recitals to
this agreement.
"TRO Common Stock Equivalents" shall have the meaning set forth in
Section 4.02 of this Agreement.
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"TRO Material Adverse Effect" shall mean an event or change,
individually, or in the aggregate with other events or changes, that could
reasonably be expected to have a material adverse effect on (a) the business,
properties, prospects, condition (financial or otherwise) or results of
operations of TRO and the TRO Subsidiaries taken as a whole (other than those
events, changes or effects resulting from general economic conditions or the
industry in which TRO is engaged generally) or (b) the ability of TRO to
consummate the transactions contemplated hereby.
"Governmental Approval" shall mean the consent, approval, order or
authorization of, or registration, declaration or filing with any court,
administrative agency or commission or other Governmental Entity, authority or
instrumentality, domestic or foreign.
"Governmental Entity" means the government of the United States of
America, any other nation or any political subdivision thereof, whether foreign,
state or local, and any agency, authority, instrumentality, regulatory body,
court, tribunal, arbitrator, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Indebtedness" shall mean as to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the assets
of such Person and whether or not contingent, but without duplication: (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the Exchange of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not more than
120 days overdue or which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP); (e) every Capital Lease Obligation of such Person; (f) any
obligation of such Person to pay any discount, shares, fees, indemnities,
penalties, recourse, expenses or other amounts in connection with any sales by
such Person unless such sales are on a non-recourse basis (as to collectability)
of (i) accounts or general intangibles for money due or to become due, (ii)
chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables, whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of
defaulted receivables for collection and not as a financing arrangement; (g)
every obligation of such Person under any forward contract, futures contract,
swap, option or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements), the value of which is
dependent upon shares rates, currency exchange rates, commodities or other
indices (a "derivative contract"); (h) every obligation in respect of
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent that such Person is liable therefore as a
result of such Person's ownership shares in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide that
such Person is not liable therefore and such terms are enforceable under
applicable law; and (i) every Contingent Obligation of such Person with respect
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to Indebtedness of another Person. Notwithstanding anything to the contrary in
this Agreement, the term "Indebtedness" expressly includes the following debts
and obligations of WIOG.
"Laws" shall mean all foreign, federal, state and local statutes, laws,
ordinances, regulations, rules, resolutions, orders, writs, injunctions,
judgments and decrees applicable to the specified Person and to the businesses
and assets thereof.
"License" shall mean any franchise, authorization, license, permit,
certificate of occupancy, easement, variance, exemption, certificate, consent or
approval of any Governmental Entity or other Person.
"Lien" shall mean any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, limited liability company,
association, Entity, institution, entity, party, Governmental Entity or any
other juridical entity of any kind or nature whatsoever.
"Takeover Proposal" shall mean any proposal for a tender or exchange
offer, Exchange, consolidation, sale of all or substantially all of such party's
assets, sale of in excess of fifteen percent of the shares of capital stock or
other business combination involving such party or any proposal or offer to
acquire in any manner a substantial equity shares (including any shares
exceeding fifteen percent of the equity outstanding) in, or all or substantially
all of the assets of, such party other than the transactions contemplated by
this Agreement.
"Taxes" means all federal, state, county, local, municipal, foreign and
other taxes, assessments, duties or similar charges of any kind whatsoever,
including all corporate franchise, income, gross receipts, occupation, windfall
profits, sales, use, ad valorem, value-added, profits, license, withholding,
payroll, employment, excise, premium, real property, personal property, customs,
net worth, capital gains, transfer, stamp, documentary, social security,
disability, environmental, alternative minimum, recapture and other taxes, and
including all shares, penalties and additions imposed with respect thereto,
whether disputed or not and including any obligations to indemnify or otherwise
assume or succeed to the Tax liability of any Person, and any liability in
respect of any Tax as a result of being a member of any affiliated, combined,
consolidated, unitary or similar group.
"Tax Return" means any report, return, statement, estimate,
informational return, declaration or other written information required to be
supplied to a taxing authority in connection with Taxes.
"Taxing Authority" means any domestic, foreign, federal, national,
state, county or municipal or other local government, any subdivision, agency,
commission or authority thereof, or any quasi-governmental body exercising tax
regulatory authority.
"Transaction Documents" shall mean this Agreement and the related
Exchange Agreement.
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ARTICLE II
THE CONSIDERATION
SECTION 2.01 Consideration; Effective Time
The Acquisition shall become effective upon the delivery of the WIOG
certificates duly executed representing 100% of Acquiree's outstanding shares of
common and preferred stock and delivery of the following consideration:
9,000,000 shares of common stock of TRO, shall be issued
pursuant hereto to the Shareholders of WIOG as set forth on
Schedule 2.01.
SECTION 2.02 The Acquisition.
At the Effective Time and by virtue of the Exchange, the WIOG shall be
conveyed to TRO which shall be the sole owning entity of the WIOG,
SECTION 2.03 Conversion of Securities.
As of the Effective Time, by virtue of the Exchange: The WIOG common
shares shall be deemed exchanged for common shares, (on a when issued basis) of
TRO, pursuant to the Schedule 2.01. WIOG common shares shall be conveyed to TRO
by Acquiree's shareholders, in consideration for the right to receive 9,000,000
of the TRO Common Shares, to be issued in consideration therefore in accordance
with Section 2.01 constituting approximately 42% of the total outstanding shares
of TRO on the date of closing, computed post-closing.
SECTION 2.04 Exchange Procedures.
(a) As soon as practicable after the execution hereof, TRO shall provide to
Acquiree a letter of transmittal and Exchange Agreement in appropriate and
customary form with such provisions as the board of directors of TRO after the
Exchange may reasonably specify. Upon surrender of a Certificate or Note for
cancellation to TRO, together with such letter of transmittal, duly and properly
executed, the holder of such Certificate or Note shall be entitled to receive in
exchange therefore a certificate representing an equal number of shares of TRO
Common Stock as represented Acquirer's shares represented by the certificate,
and the Certificates so surrendered shall be canceled. Until surrendered as
contemplated by this Section 2.04, each Certificate shall, at and after the
Effective Time, be deemed to represent only the right to receive, upon surrender
of such Certificate, TRO Common shares as contemplated by this Section 2.04,
together with any dividends and other distributions payable as provided in
Section 2.05 hereof, and the holders thereof shall have no rights whatsoever as
stockholders of TRO. Shares of TRO Common issued in the Exchange shall be
issued, and be deemed to be outstanding, as of the Effective Time. TRO shall
cause all such shares of TRO Common issued pursuant to the Exchange to be duly
authorized, validly issued, fully paid and non-assessable and not subject to
preemptive rights.
(b) If any certificate representing shares of TRO Common is to be issued in
a name other than that in which the Certificate surrendered in exchange
therefore is registered, it shall be a condition of such exchange that the
Certificate so surrendered shall be properly endorsed and otherwise in proper
form for transfer and that the person requesting such exchange shall pay any
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transfer or other taxes required by reason of the issuance of certificates for
such shares of TRO Common in a name other than that of the registered holder of
the Certificate so surrendered.
SECTION 2.05. Dividends and Distributions.
No dividends or other distributions declared or made with respect to
TRO Common Stock with a record date on or after the Effective Time shall be paid
to the holder of a Certificate entitled by reason of the Exchange to receive
certificates representing TRO Common Stock until such holder surrenders such
Certificate as provided in Section 2.04 hereof. Upon such surrender, there shall
be paid by TRO to the person in whose name certificates representing shares of
TRO Common Stock shall be issued pursuant to the terms of this Article II (i) at
the time of the surrender of such Certificate, the amount of any dividends and
other distributions theretofore paid with respect to that number of whole shares
of such TRO Common Stock represented by such surrendered Certificate pursuant to
the terms of this Article II, which dividends or other distributions had a
record date on or after the Effective Time and a payment date prior to such
surrender and (ii) at the appropriate payment date, the amount of dividends and
other distributions payable with respect to that number of whole shares of TRO
Common Stock represented by such surrendered Certificate pursuant to the terms
of this Article II, which dividends or other distributions have a record date on
or after the Effective Time and a payment date subsequent to such surrender.
ARTICLE III
THE CLOSING
SECTION 3.01 Closing.
Unless this Agreement shall have been terminated and the transactions
herein contemplated shall have been abandoned pursuant to Article IX, and
subject to the satisfaction or waiver of the conditions set forth in Article
VIII the closing of the Acquisition (the "Closing") shall take place as soon as
reasonably practicable (but in no event on written notice of less than two (2)
business days) after all of the conditions set forth in Article VIII are
satisfied, but no later than March 31, 2015 or, to the extent permitted
thereunder, waived, or extended, at the offices of Xxxxxxx X. Xxxxxxx, located
at 0000 Xxxxxxx Xxxx, Xxxxxx, XX 00000 or at such other time and place as may be
agreed to in writing by the parties hereto (the date of such Closing being
referred to herein as the "Closing Date").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRO
Except as set forth in the applicable section of the disclosure schedule
delivered by TRO to Acquiree prior to the execution of this Agreement (the "TRO
Disclosure Schedule"), TRO represents and warrants to Sellers as follows:
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SECTION 4.01 Organization of TRO; Authority.
TRO is an Entity duly organized, validly existing and in good standing
under the laws of the State of Colorado. TRO has all requisite corporate power
and corporate authority to enter into the transaction documents to which it is a
party, to consummate the transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its business. Subject to the
receipt of its board of director's approval, the execution, delivery and
performance by TRO of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of TRO, including,
without limitation, the approval of the board of directors of TRO. The
Transaction Documents have been duly executed and delivered by each of TRO and,
assuming that the Transaction Documents constitute a valid and binding
obligation of the other parties thereto, constitute a valid and binding
obligation of TRO, enforceable against TRO in accordance with its terms. TRO has
heretofore delivered or made available to Acquiree complete and correct copies
of the certificate of incorporation and by-laws of TRO, the minute books and
stock transfer records of TRO, as in effect as of the date of this Agreement.
TRO is not in violation of its organizational documents.
SECTION 4.02 Capitalization.
The authorized capital stock of TRO consists of 275,000,000 shares of
TRO Common Stock, and 50,000,000 shares of Preferred Stock, of which 9,638,700
common Shares fully diluted (approximately) are outstanding on the date hereof
(including shares pending issuance and or reserved for conversion or settlements
pursuant to Board Minutes.) No other shares of any other class or series of TRO
Common Stock or Preferred or securities exercisable or convertible into or
exchangeable for TRO Common Stock ("TRO Common Stock Equivalents") are
authorized, issued or outstanding. The outstanding shares of TRO Common Stock
have been duly authorized and validly issued and are fully paid and
non-assessable and were not issued in violation of, and are not subject to, any
preemptive, subscription or similar rights. To TRO's knowledge, none of the
outstanding shares of TRO Common Stock was issued in violation of any Law,
including without limitation, federal and state securities laws. There are
outstanding warrants, options, subscriptions, calls, rights, agreements,
convertible or exchangeable securities or other commitments or arrangements
relating to the issuance, sale, purchase, return or redemption, and, to TRO's
knowledge, voting or transfer of any shares, whether issued or unissued, of TRO
Common Stock, TRO Common Stock Equivalents or other securities of TRO, all as
shown on Schedule 4.02 hereto. On the Closing Date, the shares of TRO Common for
which shares of Sellers Common Stock shall be issued in the Acquisition will
have been duly authorized and, when issued and delivered in accordance with this
Agreement, such shares of TRO Common or Preferred Stock will be validly issued,
fully paid and non-assessable.
SECTION 4.03 No Violation; Consents and Approvals.
The execution and delivery by TRO of the transaction documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not, conflict with or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) the terms and conditions
or provisions of the certificate of incorporation or by-laws of TRO (b) any Law
applicable to TRO or the property or assets of TRO, or (c) give rise to any
right of termination, cancellation or acceleration under, or result in the
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creation of any lien upon any of the properties of TRO under any contract to
which TRO is a party or by which TRO or any assets of TRO may be bound, except,
in the case of clauses (b) and (c), for such conflicts, violations or defaults
which are set forth in the TRO Disclosure Schedule and as to which requisite
waivers or consents will have been obtained prior to the Closing or which,
individually or in the aggregate, would not have a material adverse effect on
TRO. No Governmental Approval is required to be obtained or made by or with
respect to TRO in connection with the execution and delivery of this Agreement
or the consummation by TRO of the transactions contemplated hereby.
SECTION 4.04 Litigation; Compliance with Laws.
(a) There are: (i) no claims, actions, suits, investigations or proceedings
pending or, to the knowledge of TRO, threatened against, relating to or
affecting TRO, the business, the assets, or any employee, officer, director,
stockholder, or independent contractor of TRO in their capacities as such, and
(ii) no orders of any Governmental Entity or arbitrator outstanding against TRO,
the business, the assets, or any employee, officer, director, stockholder, or
independent contractor of TRO in their capacities as such, or that could prevent
or enjoin, or delay in any respect, consummation of the transactions
contemplated hereby.
(b) TRO has complied and is in compliance in all material respects with all laws
applicable to TRO, its business or its assets. Neither TRO has received notice
from any Governmental Entity or other Person of any material violation of law
applicable to TRO, its business or assets. TRO has obtained and holds all
required Licenses (all of which are in full force and effect) from all
Government Entities applicable to TRO, its business or their assets. No
violations are or have been recorded in respect of any such license and no
proceeding is pending, or, to the knowledge of TRO, threatened to revoke or
limit any such License.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ACQUIREE
Except as set forth in the applicable section of the disclosure
schedule delivered by Acquiree to TRO prior to the execution of this Agreement
(the "Acquiree Disclosure Schedule"), Acquiree represents and warrants to TRO as
follows:
SECTION 5.01 Organization of Acquiree; Authority.
Acquiree is an corporation duly organized, validly existing and in good
standing under the laws of the State of Wyoming and has all requisite individual
power and individual authority to enter into the Transaction Documents, to
consummate the transactions contemplated hereby and thereby, to own, lease and
operate Acquiree properties and to conduct Acquiree business. Subject to the
approval by Shareholders, the execution, delivery and performance by Acquiree of
the Transaction Documents and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the part
of Acquiree, including, without limitation, the approval of Shareholders. The
Transaction Documents have been duly executed and delivered by Acquiree and,
assuming that the Transaction Documents constitute a valid and binding
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obligation of TRO, constitute a valid and binding obligation of Acquiree.
Acquiree is duly qualified or licensed to do business as a foreign Entity and
are in good standing in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to obtain such qualification
or license would not, individually or in the aggregate, have a Acquiree Material
Adverse Effect on Acquiree. Acquiree has herewith delivered or made available to
TRO complete and correct copies of WIOG articles, bylaws, and Board minutes, as
in effect as of the date of this Agreement. Acquiree is not in violation of its
organizational documents.
SECTION 5.02 Capitalization.
(a) WIOG has __________________common shares authorized under its
Articles of Incorporation and there are _______________common shares issued and
outstanding as of the date hereof. To Acquiree's knowledge, none of the WIOG
shares were was issued in violation of any Law, including, without limitation,
state and federal securities laws. There are no Liens on or with respect to WIOG
or its assets.
(b) There are no outstanding: (i) securities convertible into or
exchangeable for WIOG securities; (ii) options, warrants or other rights to
purchase or subscribe for WIOG; or (iii) contracts, commitments, agreements,
understandings or arrangements of any kind relating to WIOG, any such
convertible or exchangeable securities or any such options, warrants or rights.
There is no outstanding right, option or other agreement of any kind to purchase
or otherwise to receive from Acquiree, any ownership shares in WIOG, and there
is no outstanding right or security of any kind convertible into such ownership
shares. To Acquiree's knowledge, there are no voting trusts, proxies or other
similar agreements or understandings with respect to WIOG. There are no
obligations, contingent or otherwise, of Acquiree to repurchase, redeem or
otherwise acquire any WIOG or to provide funds to or make any investment (in the
form of a loan, capital contribution or otherwise) in any other Person. There
are no accrued and unpaid dividends with respect to any outstanding shares of
any WIOG.
SECTION 5.03 No Violation; Consents and Approvals.
The execution and delivery by Acquiree of the Transaction Documents
does not, and the consummation of the transactions contemplated hereby and
thereby and compliance with the terms hereof and thereof will not conflict with,
or result in any violation of or default (or an event which, with notice or
lapse of time or both, would constitute a default) under, (a) the terms and
conditions or provisions of Acquiree, (b) any Laws applicable to Acquiree or the
property or assets of WIOG, or (c) give rise to any right of termination,
cancellation or acceleration under, or result in the creation of any Lien upon
WIOG under, any Contracts to which WIOG is a party or by which WIOG or any of
its assets may be bound, except, in the case of clauses (b) and (c), for such
conflicts, violations or defaults as to which requisite waivers or consents will
have been obtained prior to the Closing or which, individually or in the
aggregate, would not have an WIOG Material Adverse Effect. No Governmental
Approval is required to be obtained or made by or with respect to WIOG in
connection with the execution and delivery of this Agreement or the consummation
by Acquiree of the transactions contemplated hereby, except where the failure to
obtain such Governmental Approval would not, individually or in the aggregate,
have a Material Adverse Effect on WIOG.
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SECTION 5.04 Litigation; Compliance with Laws.
(a) Except as would not have a Material Adverse Effect on WIOG, there
are: (i) no claims, actions, suits, investigations or proceedings pending or, to
the knowledge of Acquiree, threatened against, relating to or affecting WIOG,
its business, its assets, or any employee, officer, director, stockholder, or
independent contractor of WIOG in their capacities as such, and (ii) no orders
of any Governmental Entity or arbitrator are outstanding against WIOG, its
business, its assets, or any employee, officer, director, stockholder, or
independent contractor of WIOG in their capacities as such, or that could
prevent or enjoin, or delay in any respect, consummation of the transactions
contemplated hereby. The Acquiree Disclosure Schedule shall include a
description of all claims, actions, suits, investigations or proceedings
involving WIOG, its business, its assets, or any employee, officer, director,
stockholder or independent contractor of WIOG in their capacities as such.
(b) Except as would not have an Material Adverse Effect, Acquiree has
complied and is in compliance in all material respects with all Laws applicable
to Acquiree, its business or its assets. WIOG has not received notice from any
Governmental Entity or other Person of any material violation of Law applicable
to it, its business or its assets. Acquireehas obtained and holds all required
Licenses (all of which are in full force and effect) from all Government
Entities applicable to it, its business or its assets. No violations are or have
been recorded in respect of any such License and no proceeding is pending, or,
to the knowledge of Acquiree threatened to revoke or limit any such License.
SECTION 5.05 Financial Statements.
Acquiree shall provide, prior to closing hereunder, audited financial
statements in accordance with GAAP accounting consistently applied, complete and
true and accurate in all respects, disclosing all liabilities, and assets of
WIOG, and shall provide all books and records necessary to complete all filings
in accordance with SEC Rules and Regulations.
SECTION 5.06 Conduct of WIOG Business
WIOG shall conduct its business in the ordinary course of its
operations and will not incur any new extraordinary expense in excess of
$10,000, without the consent of TRO. WIOG shall not pay any severance benefits,
golden parachute payments, nor dividends or bonuses to its management, nor
shareholders during the term of this agreement.
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ARTICLE VI
COVENANTS RELATING TO CONDUCT OF
BUSINESS PENDING THE EXCHANGE
SECTION 6.01 Conduct of the Business Pending the Exchange.
(a) During the period from the date of this Agreement and continuing
until the Effective Time, TRO agrees as to itself and the TRO Subsidiaries, that
TRO shall not, and shall cause the TRO Subsidiaries not to, engage in any
business whatsoever other than in connection with the consummation of the
transactions contemplated by this Agreement, and shall use commercially
reasonable efforts to preserve intact its business and assets, maintain its
assets in good operating condition and repair (ordinary wear and tear excepted),
retain the services of its officers, employees and independent contractors and
use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, Acquiree consents
otherwise in writing.
(b) During the period from the date of this Agreement and continuing
until the Effective Time, Acquiree agrees that, other than in connection with
the consummation of the transactions contemplated hereby, it shall carry on its
business only in the ordinary course of business consistent with past practice,
use commercially reasonable efforts to preserve intact its business and assets
and use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, TRO consents
otherwise in writing. Additionally, during the period from the date of this
Agreement and continuing until the Effective Time, Acquiree agrees that, other
than in connection with the consummation of the transaction contemplated hereby,
Acquiree shall carry on its business only in the ordinary course of business
consistent with past practice, use commercially reasonable efforts to preserve
intact its business and assets and use reasonable commercial efforts to keep in
full force and effect liability insurance and bonds comparable in amount and
scope of coverage to that currently maintained with respect to its business,
unless, in any case, TRO consents otherwise in writing. During the period from
the date of this Agreement and continuing until the Effective Time, Acquiree and
TRO agrees as to itself, that except as expressly contemplated or permitted by
this Agreement, or to the extent that the other party shall otherwise consent in
writing:
(1) It shall not amend or propose to amend its certificate of incorporation
or by-laws or equivalent organizational documents except as contemplated in this
Agreement.
(2) It shall not, nor in the case of TRO shall it permit the TRO
Subsidiaries to, issue, deliver, sell, redeem, acquire, authorize or propose to
issue, deliver, sell, redeem, acquire or authorize, any shares of its capital
stock of any class or any securities convertible into, or any rights, warrants
or options to acquire, any such shares or convertible securities or other
ownership of equity, provided that: (1) TRO shall be permitted to issue the
shares of TRO Common Stock to be issued to Acquiree hereunder, and (2) each
party shall be permitted to issue shares of its common stock pursuant to the
exercise of stock options, warrants and other convertible securities outstanding
as of the date hereof and listed on the Acquiree Disclosure Schedule or the TRO
Disclosure Schedule, as the case may be:
12
(3) It shall not, nor in the case of TRO shall it permit any of the TRO
Subsidiaries to, nor shall it propose to: (i) declare, set aside, make or pay
any dividend or other distribution, payable in cash, stock, property or
otherwise, with respect to any of its capital stock or (ii) reclassify, combine,
split, subdivide or redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock.
(4) Other than dispositions in the ordinary course of business consistent
with past practice which would not cause a TRO Material Adverse Effect or a WIOG
Material Adverse Effect (as applicable), individually or in the aggregate, to it
and its subsidiaries, taken as a whole, it shall not, nor shall it permit any of
its subsidiaries to, sell, lease, encumber or otherwise dispose of, or agree to
sell, lease (whether such lease is an operating or capital lease), encumber or
otherwise dispose of its assets.
(5) It shall promptly advise the other party hereto in writing of any
change in the condition (financial or otherwise), operations or properties,
businesses or business prospects of such party or any of its subsidiaries which
would result in a TRO Material Adverse Effect or WIOG Material Adverse Effect,
as the case may be.
(6) It shall not permit to occur, any (1) change in accounting principles,
methods or practices, investment practices, claims, payment and processing
practices or policies regarding intercompany transactions, (2) incurrence of
Indebtedness or any commitment to incur Indebtedness, any incurrence of a
contingent liability, Contingent Obligation or other liability of any type,
except for, with respect to . WIOG, other than obligations related to the
Exchange of Inventory in the ordinary course of business consistent with past
practices, (3) cancellation of any debt or waiver or release of any contract,
right or claim, except for cancellations, waivers and releases in the ordinary
course of business consistent with its past practice which do not exceed $5,000
in the aggregate, (4) amendment, termination or revocation of, or a failure to
perform obligations or the occurrence of any default under, any contract or
agreement (including, without limitation, leases) to which it is or, as of April
30, 2015, was a party, other than in the ordinary course of business consistent
with past practice, or any License, (5) execution of termination, severance or
similar agreements with any of its officers, directors, employees, agents or
independent contractors or (6) entering into any leases of real property or
agreement to acquire real property.
SECTION 6.02 No Action.
During the period from the date of this Agreement and continuing until
the Effective Time, Acquiree and TRO agrees as to itself that it shall not, and
Acquiree shall not, take or agree or commit to take any action, (i) that is
reasonably likely to make any of its representations or warranties hereunder
inaccurate; or (ii) that is prohibited pursuant to the provisions of this
Article VI.
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ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.01 Access to Information.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, each party shall give the other party and its
respective counsel, accountants, representatives and agents, and with respect to
WIOG, it shall provide to TRO with respect to WIOG, full access, upon reasonable
notice and during normal business hours, to such party's and Acquiree's
facilities and the financial, legal, accounting and other representatives of
such party and Acquiree with knowledge of the business and the assets of such
party and Acquiree and, upon reasonable notice, shall be furnished all relevant
documents, records and other information concerning the business, finances and
properties of such party and its subsidiaries and Acquiree that the other party
and its respective counsel, accountants, representatives and agents, may
reasonably request. No investigation pursuant to this Section 7.01 shall affect
or be deemed to modify any of the representations or warranties hereunder or the
condition to the obligations of the parties to consummate the Exchange; it being
understood that the investigation will be made for the purposes among others of
the board of directors of each party determining in its good faith reasonable
business judgment the accuracy of the representations and warranties of the
other party. In the event of the termination of this Agreement, each party, if
so requested by the other party, will return or destroy promptly every document
furnished to it by or on behalf of the other party in connection with the
transactions contemplated hereby, whether so obtained before or after the
execution of this Agreement, and any copies thereof (except for copies of
documents publicly available) which may have been made, and will use reasonable
efforts to cause its representatives and any representatives of financial
institutions and investors and others to whom such documents were furnished
promptly to return or destroy such documents and any copies thereof any of them
may have made. It is hereby acknowledged the TRO shall have filed all of its
financial reports with the SEC prior to closing hereunder which shall constitute
delivery of the same to WIOG.
SECTION 7.02 No Shop; Exchange Proposals.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, neither Acquiree nor TRO shall, nor shall they
authorize or permit any of their respective officers, directors or employees,
Acquiree employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it to, solicit, initiate or
encourage (including by way of furnishing information), or take any other action
to facilitate, any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, any Takeover Proposal (as hereinafter
defined), or negotiate with respect to, agree to or endorse any Takeover
Proposal (except in any case if the board of directors or special committee of
TRO or Acquiree, as the case may be, determines in good faith, based upon the
written opinion of its outside legal counsel, that the failure to do so would
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constitute a breach of the fiduciary duties of the TRO' or Acquiree under
applicable law). Acquiree shall promptly advise TRO and TRO shall promptly
advise Acquiree, as the case may be, orally and in writing of any such inquiries
or proposals and shall also promptly advise TRO or Acquiree, as the case may be,
of any developments or changes regarding such inquiries or proposals. Acquiree
and TRO shall immediately cease and cause to be terminated any existing
discussions or negotiations with any persons (other than Acquiree and TRO)
conducted heretofore with respect to any Takeover Proposal. Acquiree and TRO
agree not to release (by waiver or otherwise) any third party from the
provisions of any confidentiality or standstill agreement to which Acquiree or
TRO is a party.
SECTION 7.03 Legal Conditions to Exchange; Reasonable Efforts.
Acquiree, TRO shall take all reasonable actions necessary to comply
promptly with all legal requirements which may be imposed on itself with respect
to the Exchange and will promptly cooperate with and furnish information to each
other in connection with any such requirements imposed upon any of them or any
of their Subsidiaries in connection with the Exchange. Acquiree and TRO will
take all reasonable actions necessary to obtain (and will cooperate with each
other in obtaining) any consent, authorization, order or approval of, or any
exemption by, any Governmental Entity or other public or private third party,
required to be obtained or made by Acquiree or TRO in connection with the
Exchange or the taking of any action contemplated thereby or by this Agreement.
SECTION 7.04 Certain Filings.
Each party shall cooperate with the other in (a) connection with the
preparation of an announcement or required filings, (b) determining whether any
action by or in respect of, or filing with, any governmental body, agency,
official or authority is required, or any actions, consents, approvals or
waivers are required to be obtained from parties to any material contracts, in
connection with the consummation of the transactions contemplated by this
Agreement and (c) seeking any such actions, consents, approvals or waivers or
making any such filings, furnishing information required in connection therewith
or with the 8-K and seeking timely to obtain any such actions, consents,
approvals or waivers. Each party shall consult with the other in connection with
the foregoing and shall use all reasonable commercial efforts to take any steps
as may be necessary in order to obtain any consents, approvals, permits or
authorizations required in connection with the Exchange.
SECTION 7.05 Public Announcements and Filings.
Each party shall give the other a reasonable opportunity to comment
upon, and, unless disclosure is required, in the opinion of counsel, by
applicable law, approve (which approval shall not be unreasonably withheld), all
press releases or other public communications of any sort relating to this
Agreement or the transactions contemplated hereby.
SECTION 7.06 Tax Matters.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, without the prior written consent of the other
party or if required in the opinion of counsel, neither TRO nor Acquiree, shall
make or change any election, change an annual accounting period, adopt or change
any accounting method, file any amended Tax Return, enter into any closing
agreement, settle any Tax claim or assessment relating to it, surrender any
right to claim a refund of Taxes, consent to any extension or waiver of the
limitation period applicable to any Tax claim or assessment relating to it, or
take any other action relating to the filing of any Tax Return or the payment of
any Tax.
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SECTION 7.07 Supplements to Schedules.
Prior to the Closing, Acquiree will supplement or amend its disclosure
schedule with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such disclosure schedule. No supplement to or amendment of
the disclosure schedule made pursuant to this Section 7.07 shall be deemed to
cure any breach of any representation or warranty made in this Agreement unless
the other parties hereto specifically agree thereto in writing. Prior to the
Closing, TRO may supplement or amend its disclosure schedule with respect to any
matter which, if existing or occurring at the date of this Agreement, would have
been required to be set forth or described in such disclosure schedule. No
supplement to or amendment of the disclosure schedule made pursuant to this
Section 7.07 shall be deemed to cure any breach of any representation or
warranty made in this Agreement unless the other parties hereto specifically
agree thereto in writing.
SECTION 7.08 TRO Liabilities.
At Closing TRO will have certain liabilities and may have convertible
debt, and such liabilities shall, in the future, possibly be converted to common
stock.
SECTION 7.09 Liens, claims, debts, or Options/ Warrants.
WIOG and its Shareholders warrant and represent that no other person or
entity, not disclosed herein, has any valid debt, or lien or claim to the WIOG
assets or to shares in WIOG whatsoever.
ARTICLE VIII
CONDITIONS OF THE EXCHANGE
SECTION 8.01 Conditions to Each Party's Obligation to Effect the Exchange.
The respective obligations of each party to effect the Exchange and the
other transactions contemplated herein shall be subject to the satisfaction at
or prior to the Effective Time of the following conditions, any or all of which
may be waived, in whole or in part to the extent permitted by applicable law:
(a) Acquiree Approval. This Agreement shall have been duly adopted and
agreed by Acquiree's shareholders, through an Exchange Agreement, Consent and
Representations signed by Acquiree.
(b) No Injunctions or Restraints. No governmental authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, execution order, decree, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
which materially restricts, prevents or prohibits consummation of the Exchange
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or any transaction contemplated by this Agreement; provided, however, that the
parties shall use their reasonable commercial efforts to cause any such decree,
judgment, injunction or other order to be vacated or lifted.
SECTION 8.02 Additional Conditions to Obligations of TRO.
The obligations of TRO to effect the Exchange and the other
transactions contemplated by this Agreement are also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by TRO:
(a) Representations and Warranties. The representations and warranties
of WIOG and its shareholders set forth in this Agreement shall be true and
correct in all material respects (except for those representations and
warranties qualified by materiality, which shall be true and correct in all
respects) as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, except as otherwise contemplated by this
Agreement.
(b) Performance of Obligations of WIOG. Acquiree and Acquiree's
shareholders shall have performed in all material respects all conditions,
covenants, agreements and obligations required to be performed by it under this
Agreement at or prior to the Closing Date.
(c) No Material Adverse Change to WIOG. From the date hereof through
and including the Effective Time, no event shall have occurred which would have
an WIOG Material Adverse Effect.
(d) Delivery of Audited Financial Statements Audited GAAP Financial
Statements of WIOG pursuant to SEC Rules and Regulations through December 31,
2014.
(e) Third Party Consents. Acquiree shall have obtained all consents and
approvals, required to be obtained prior to or at the Closing Date, from third
parties or governmental and regulatory authorities in connection with the
execution, delivery and performance by Acquiree of this Agreement and the
consummation of the transactions contemplated hereby.
(f) No Governmental Order or Other Proceeding or Litigation. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(g) Due Diligence. WIOG shall provide TRO, upon request, with all due
diligence materials, that TRO deems necessary for examination for this
transaction, and for any necessary audits, including financial information,
leases, geology, participation agreements and corporate records. This
transaction and performance under this Agreement by TRO are subject to its
satisfaction with the Due Diligence examination, in its sole discretion. In the
event that TRO deems remedial action necessary for any matter that it finds,
then TRO shall give WIOG written notice of such requirement, and WIOG shall have
ten days within which to provide remedial action or an agreed plan of remedy.
The Due Diligence period shall expire ten days before the last closing date
under this Agreement, unless extended in writing.
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(g) Deliveries. At the Closing, Acquiree shall have delivered to TRO or
TRO shall have otherwise obtained:
(1) true, correct and complete copies of (1) the certificate of
organization or other charter document, as amended to date, of
Acquiree as filed with, the Secretary of State or other appropriate
official of the state or other jurisdiction of organization of
Acquiree, (2) the by-laws or other similar organizational document of
Acquiree, and (3) resolutions duly and validly adopted by the Board of
Directors and the stockholders of Acquiree evidencing the
authorization of the execution and delivery of this Agreement, the
other Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby, in
each case, accompanied by a certificate of the Secretary or Assistant
Secretary of Acquiree, dated as of the Closing Date, stating that no
amendments have been made thereto from the date thereof through the
Closing Date; and
(2) Audited GAAP Financial Statements of WIOG pursuant to SEC Rules
and Regulations through December 31, 2014.
(3) WIOG stock certificates of Acquiree constituting 100% of the
issued and outstanding stock and notes of Acquiree.
(4) Acquiree shall have full assignment of all leases and assets
involving WIOG, or its participations, free and clear of any liens
claims or encumbrances.
SECTION 8.03 Additional Conditions of Obligations of Acquiree.
The obligation of Acquiree to effect the Exchange and the other
transactions contemplated by this Agreement is also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by Acquiree :
(a) Representations and Warranties. The representations and warranties
of TRO set forth in this Agreement shall be true and correct in all material
respects (except for those representations and warranties qualified by
materiality) as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, except as otherwise contemplated by
this Agreement.
(b) Performance of Obligations of TRO. TRO shall have performed in all
material respects all conditions, covenants, agreements and obligations required
to be performed by them under this Agreement at or prior to the Closing Date.
(c) No Material Adverse Change to TRO. From the date hereof through and
including the Effective Time, no event shall have occurred which would have a
TRO Material Adverse Effect.
(d) No Governmental Order or Other Proceeding or Litigation. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
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(e) Deliveries. At the Closing, TRO shall have delivered to Acquiree:
(1) The share certificates specified in Section 1.01(a), issued to
Acquiree's shareholders, in proper amounts, pursuant to a schedule
provided by Acquiree.
(2) Board Resolutions appointing 1 new Director of Acquiree's choice.
ARTICLE IX
TERMINATION
SECTION 9.01 Termination.
This Agreement may be terminated at any time prior to the Effective
Time, by TRO or under the terms as set forth below:
(a) by mutual consent of the boards of directors of TRO and Acquiree;
or
(b) by TRO upon written notice to Acquiree, if: (A) any condition to
the obligation of TRO to close contained in Article VII hereof has not been
satisfied by 60 days after date hereof (the "End Date") (unless such failure is
the result of TRO's breach of any of its representations, warranties, covenants
or agreements contained herein) or (B) the TRO stockholders do not approve the
Exchange; or
(c) by Acquiree upon written notice to TRO, if: (A) any condition to
the obligation of Acquiree to close contained in Article VII hereof has not been
satisfied by the End Date (unless such failure is the result of Acquiree's
breach of any of its representations, warranties, covenants or agreements
contained herein); or (B) the Acquiree does not approve the Exchange; or
(d) by TRO if the board of directors or special committee of TRO
determines in good faith, based upon the written opinion of its outside legal
counsel, that the failure to terminate this Agreement would constitute a breach
of the fiduciary duties of the TRO board of directors or special committee to
the TRO stockholders under applicable law; or
SECTION 9.02 Fees, Costs and Expenses.
Whether or not the Exchange is consummated, legal costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by such party which incurs the expense.
ARTICLE X
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, covenants, agreements, and warranties of the parties
set forth in this Agreement shall survive the Closing. Following the Closing
Date with respect to any particular representation or warranty, any party hereto
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shall have the responsibility to complete any duties or deliver any documents
necessary to complete, fulfill or comply with respect to such representation and
warranty, within a reasonable time after written demand..
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Notices.
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopy, telex or similar writing) and shall be
deemed given or made as of the date delivered, if delivered personally or by
telecopy (provided that delivery by telecopy shall be followed by delivery of an
additional copy personally, by mail or overnight courier), one day after being
delivered by overnight courier or three days after being mailed by registered or
certified mail (postage prepaid, return receipt requested), to the parties at
the following addresses:
if to TRO to: T-Xxx Oil, Inc.
if to Acquiree or its Shareholders:
Western Interior Oil & Gas Corp.
or such other address or telex or telecopy number as such party may hereafter
specify for the purpose by notice to the other party hereto.
SECTION 11.02 Amendment; Waiver.
This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided that
the same are in writing and signed by or on behalf of the parties hereto.
SECTION 11.03 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party shall assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the written consent of the
other party hereto.
SECTION 11.04 Governing Law.
This Agreement shall be construed in accordance with and governed by
the law of the State of Colorado without regard to principles of conflict of
laws.
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SECTION 11.05 Waiver of Jury Trial.
Each party hereto hereby irrevocably and unconditionally waives any
rights to a trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
SECTION 11.06 Consent to Jurisdiction.
Each of the Parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of any court of the State of Colorado or any federal
court sitting in Colorado for purposes of any suit, action or other proceeding
arising out of this Agreement and the Transaction Documents (and agrees not to
commence any action, suit or proceedings relating hereto or thereto except in
such courts). Each of the Parties agrees that service of any process, summons,
notice or document pursuant to the laws of the State of Colorado and on the
individuals designated in Section 10.01 shall be effective service of process
for any action, suit or proceeding brought against it in any such court.
SECTION 11.07 Counterparts; Effectiveness.
Facsimile transmissions of any executed original document and/or
retransmission of any executed facsimile transmission shall be deemed to be the
same as the delivery of an executed original. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 11.08 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership.
Except as expressly provided herein, this Agreement (including the
documents and the instruments referred to herein) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. Except as
expressly provided herein, this Agreement is not intended to confer upon any
person other than the parties hereto, any rights or remedies hereunder. The
parties hereby acknowledge that no person shall have the right to acquire or
shall be deemed to have acquired shares of common stock of the other party
pursuant to the Exchange until consummation thereof.
SECTION 11.09 Headings.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
SECTION 11.10 No Strict Construction.
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
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SECTION 11.11 Severability.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
SECTION 11.12 Errors and Omissions.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
SECTION 11.12 Force majeure.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
IN WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be duly executed as of the day and year first above written.
T-XXX OIL, INC.
By: _____________________________________
Name: Xxx Xxxxxxx
Title: Chief Executive Officer
WESTERN INTERIOR OIL & GAS CORP.
By:______________________________________
Name:
Title: Chief Executive Officer
SHAREHOLDERS OF WESTERN INTERIOR OIL & GAS CORP.
---------------------------------------
Number of Shares:
--------------------------------------
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SCHEDULE 1.01
SHARES
Total Common Stock to be issued 9,000,000 shares
Name of Shareholders Shares:
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EXCHANGE AGREEMENT WITH REPRESENTATIONS
Gentlemen:
The Subscriber/Exchangor ("Subscriber") herein, as Owner of
_____________shares of outstanding common stock of Western Interior Oil & Gas
Corp. (WIOG) is offering to exchange __________ shares of the common stock of
Western Interior Oil & Gas Corp. for _____________ shares of common stock of
T-Xxx Oil, Inc., Inc. ("Company" or "TRO"), a Colorado corporation.
Subscriber hereby offers to exchange the shares as set forth above, and
agrees to become a shareholder of the Company (TRO). In order to induce the
Company (TRO) to accept my offer, I advise you as follows and acknowledge:
1. Corporate Documents. Receipt of copies of Articles, By-Laws, and audited
financial statements of the Company and such other documents as I have
requested: I hereby acknowledge that I have received the documents (as may be
supplemented from time to time) relating to the Company and that I have
carefully read the information and that I understand all of the material
contained therein.
2. Availability of Information. I hereby acknowledge that the Company has made
available to me the opportunity to ask questions of, and receive answers from
the Company and any other person or entity acting on its behalf, concerning the
terms and conditions of the Business, the financial statements and related
information of the Company and the 2014 10K, 10Q for Dec. 31, 2014 and the 8k
12g 3 of the Company and the information contained in the corporate documents,
and to obtain any additional information, to the extent the Company possesses
such information or can acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information provided by the Company and
any other person or entity acting on its behalf.
3. Representations and Warranties. Subscriber represents and warrants to the
Company (TRO) (and understands that TRO is relying upon the accuracy and
completeness of such representations and warranties in connection with the
availability of an exemption for the offer and exchange of the shares from the
registration requirements of applicable federal and state securities laws) that:
(a) RESTRICTED SECURITIES.
(I) I understand that the Shares have not been registered under the Securities
Act of 1933, as amended (the "Act"), or any state securities laws.
(II) I understand that if this exchange agreement is accepted and the Shares are
issued to me, I cannot sell or otherwise dispose of the shares unless the Shares
are registered under the Act or applicable state securities laws or exemptions
therefrom are available (and consequently, that I must bear the economic risk of
the investment for an indefinite period of time):
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(III) I understand that the Company (TRO) has no obligation now or at any time
to register the Shares under the Act or the state securities laws or obtain
exemptions therefrom.
(IV) I understand that the Company (TRO) will restrict the transfer of the
Shares in accordance with the foregoing representations.
(V) There is a limited public market for the common stock of the Company and
there is no certainty that a more liquid market will ever develop or be
maintained. There can be no assurance that I will be able to sell or dispose of
the Shares. Moreover, no assignment, sale, transfer, exchange or other
disposition of the Shares can be made other than in accordance with all
applicable securities laws. It is understood that a transferee may at a minimum
be required to fulfill the investor suitability requirements established by the
Company, or registration may be required.
(b) LEGEND.
I agree that any certificate representing the Shares will contain and be
endorsed with the following, or a substantially equivalent, LEGEND:
"This share certificate has been acquired pursuant to an investment
representation by the holder and shall not be sold, pledged, hypothecated or
donated or otherwise transferred except upon the issuance of a favorable opinion
by its counsel and the submission to the Company of other evidence satisfactory
to and as required by counsel to the Company, that any such transfer will not
violate the Securities Act of 1933, as amended, and applicable state securities
laws. These shares are not and have not been registered in any jurisdiction."
(c) OWN ACCOUNT.
I am the only party in interest with respect to this exchange offer, and I am
acquiring the Shares for my own account for long-term investment only, and not
with an intent to resell, fractionalize, divide, or redistribute all or any part
of my interest to any other person.
(d) AGE: CITIZENSHIP.
I am at least twenty-one years old and a citizen of the United States.
(e) ACCURACY OF INFORMATION.
All information which I have provided to the Company (TRO) concerning my
knowledge of financial and business matters is correct and complete as of the
date set forth at the end hereof, and if there should be any material change in
such information prior to acceptance of this exchange offer by the Company, I
will immediately provide the Company with such information.
4. Exchange Procedure. I understand that this exchange is subject to each
of the following terms and conditions:
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(a) The Company may reject this exchange for legal reasons, and this exchange
shall become binding upon the Company only when accepted, in writing, by the
Company.
(b) This offer may not be withdrawn by me.
(c) The share certificates to be issued and delivered pursuant to this exchange
will be issued in the name of and delivered to me.
5. Suitability. I hereby warrant and represent:
(a) That I can afford a complete loss of the investment and can afford to hold
the securities being received hereunder for an indefinite period of time.
(b) That I consider this investment a suitable investment, and
(c) That I am sophisticated and knowledgeable and have had prior experience in
financial matters and investments.
6. Acknowledgement of Risks. I have been furnished and have carefully read the
information relating to the Company, including this form of Exchange Agreement.
I am aware that:
(a) There are substantial risks incident to the ownership of Shares from the
Company, and such investment is speculative and involves a high degree of risk
of loss by me of my entire investment in the Company.
(b) No federal or state agency has passed upon the Shares or made any finding or
determination concerning the fairness of this investment.
(c) The books and records of the Company will be reasonably available for
inspection by me and/or my investment advisors, if any, at the Company's place
of business.
(d) All assumptions and projections set forth in any documents provided by the
Company have been included therein for purposes of illustration only, and no
assurance is given that actual results will correspond with the results
contemplated by the various assumptions set forth therein.
(e) TRO has had unsuccessful operating history. The proposed operations are
subject to all of the risks inherent in the establishment of a new business
enterprise, including a limited operating history. The unlikelihood of the
success of the Company must be considered in light of the problems, expenses,
difficulties, complications and delays frequently encountered in connection with
the formation and operation of a new energy business and the competitive
environment in which the Company will operate.
7. Receipt of Advice. I acknowledge that I have been advised to consult my own
attorney and investment advisor concerning the investment.
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8. Restrictions on Transfer. I acknowledge that the investment in the Company is
an illiquid investment. In particular, I recognize that:
(a) Due to restrictions described below, the lack of any market existing or to
exist for these Shares, in the event I should attempt to sell my Shares in the
Company, my investment will be highly illiquid and, probably must be held
indefinitely.
(b) I must bear the economic risk of investment in the Shares for an indefinite
period of time, since the Shares have not been registered under the Securities
Act of 1933, as amended, and issuance is made in reliance upon Section 4 of said
Act and/or Rule 506 of Regulation D under the Act, as may be applicable.
Therefore, the Shares cannot be offered, sold, transferred, pledged, or
hypothecated to any person unless either they are subsequently registered under
said Act or an exemption from such registration is available and the favorable
opinion of counsel for the Company to that effect is obtained, which is not
anticipated. Further, unless said Shares are registered with the securities
commission of the state in which offered and sold, I may not resell,
hypothecate, transfer, assign or make other disposition of said Shares except in
a transaction exempt or exempted from the registration requirement of the
securities act of such state, and that the specific approval of such sales by
the securities regulatory body of the state is required in some states.
(c) My right to transfer my Shares will also be restricted by the legend
endorsed on the certificates.
9. Access to Information. I represent and warrant to the Company that:
(a) I have carefully reviewed and understand the risks of, and other
considerations relating to, the exchange of the Shares, including the risks of
total loss in the event the Company's business is unsuccessful.
(b) I and my investment advisors, if any, have been furnished all materials
relating to the Company and its proposed activities and anything which they have
requested and have been afforded the opportunity to obtain any additional
information necessary to verify the accuracy of any representations about the
Company.
(c) The Company has answered all inquiries that I and my investment advisors, if
any, have put to it concerning the Company and its proposed activities and the
Plan and exchange for the Shares.
(d) Neither I nor my investment advisors, if any, have been furnished any
offering literature other than the documents attached as exhibits thereto and I
and my investment advisors, if any, have relied only on the information
contained in such exhibits and the information, as described in subparagraphs
(b) and (c) above, furnished or made available to them by the Company.
(e) I am acquiring the Shares for my own account, as principal, for investment
purposes only and NOT with a view to the resale or distribution of all or any
part of such Shares, and that I have no present intention, agreement or
arrangement to divide my participation with others or to resell, transfer or
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otherwise dispose of all or any part of the Shares subscribed for unless and
until I determine, at some future date, that changed circumstances, not in
contemplation at the time of this exchange, makes such disposition advisable;
(f) I, the undersigned, if on behalf of a corporation, partnership, trust, or
other form of business entity, affirm that: it is authorized and otherwise duly
qualified to purchase and hold Shares in the Company; recognize that the
information under the caption as set forth in (a) above related to investments
by an individual and does not address the federal income tax consequences of an
investment by any of the aforementioned entities and have obtained such
additional tax advice that I have deemed necessary; such entity has its
principal place of business as set forth below; and such entity has not been
formed for the specific purpose of acquiring Shares in the Company.
(g) I have adequate means of providing for my current needs and personal
contingencies and have no need for liquidity in this investment; and
(h) The information provided by the Company is confidential and non-public and I
agree that all such information shall be kept in confidence by it and neither
used by it to its personal benefit (other than in connection with its exchange
for the Shares) nor disclosed to any third party for any reason; provided,
however, that this obligation shall not apply to any such information which (i)
is part of the public knowledge or literature and readily accessible at the date
hereof; (ii) becomes part of the public knowledge or literature and readily
accessible by publication (except as a result of a breach of these provisions);
or (iii) is received from third parties (except those parties who disclose such
information in violation of any confidentiality agreements including, without
limitation, any Exchange Agreement they may have with the Company).
10. Binding Agreement. I hereby adopt, accept, and agree to be bound by all the
terms and conditions of the Share Exchange Agreement by and between TRO and
WIOG, executed concurrently herewith, and by all of the terms and conditions of
the Articles of Incorporation, and amendments thereto, and By-Laws of the
Company. Upon acceptance of this Exchange Agreement by the Company, I shall
become a Shareholder for all purposes.
11. Agreement to Be Bound. The Exchange Agreement, upon acceptance by the
Company, shall be binding upon my heirs, executors, administrators, successors,
and assigns.
12. Indemnification. I further represent and warrant:
(a) I hereby indemnify the Company and hold the Company harmless from and
against any and all liability, damage, cost, or expense incurred on account of
or arising out of:
(I) Any inaccuracy in my declarations, representations, and warranties
hereinabove set forth;
(II) The disposition of any of the Shares which I will receive, contrary to my
foregoing declarations, representations, and warranties; and
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(III) Any action, suit or proceeding based upon (1) the claim that said
declarations, representations, or warranties were inaccurate or misleading or
otherwise cause for obtaining damages or redress from the Company; or (2) the
disposition of any of the Shares or any part thereof.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Colorado, except as to the manner in which
the Subscriber elects to take title to the Shares in the Company that shall be
construed in accordance with the state of his principal residence.
14. Financial Statement. Upon request of the Company, I shall provide a sworn
and signed copy of my current financial statement.
An affiliate of, or person affiliated with, a specific person
shall mean a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.
15. Title: I will hold title to my interest as follows:
{ } Community Property
{ } Joint Tenants with Right Survivorship
{ } Tenants in Common
{ } Individually
{ } Other: (Corporation, Trust, Etc., please indicate)
(Note: Subscribers should seek the advice of their attorneys in
deciding in which of the above forms they should take ownership of the Shares,
since different forms of ownership can have varying gift tax and other
consequences, depending on the state of the investor's domicile and their
particular personal circumstances. For example, in community property states, if
community property assets are used to purchase shares held in individual
ownership, this might have adverse gift tax consequences. If OWNERSHIP IS BEING
TAKEN IN JOINT NAME WITH A SPOUSE OR ANY OTHER PERSON, THEN ALL SUBSCRIPTION
DOCUMENTS MUST BE EXECUTED BY ALL SUCH PERSONS.)
16. Accredited Investor: I represent that I am an "Accredited Investor" or an
Officer of an "Accredited Investor" as defined below:
Accredited investor shall mean any person who comes within any of the
following categories, or who the issuer reasonably believes come within any of
the following categories, at the time of the sale of the securities to that
person.
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(A) Any bank as defined in section 3(a)(2) of the Act, or any savings and loan
association or other institution as defined in section 3(a)(5)(A) of the Act
whether acting in its individual or fiduciary capacity; any broker or dealer
registered pursuant to section 15 of the Securities Exchange Act of 1934; any
insurance company as defined in section 2(13) of the Act; any investment company
registered under the Investment Company Act of 1940 or a business development
company as defined in section 2(a)(48) of that Act; any Small Business
Investment Company licensed by the U.S. Small Business Administration under
section 301(c) or (d) of the Small Business Investment Act of 1958; any plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions, for the benefit of
its employees, if such plan has total assets in excess of $5,000,000; any
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974 if the investment decision is made by a plan fiduciary, as
defined in section 3(21) of such act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or if the
employee benefit plan has total assets in excess of $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that are
accredited investors;
(B) Any private business development company as defined in section 202(a)(22) of
the Investment Advisers Act of 1940;
(C) Any organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
(D) Any director, executive officer, or general partner of the issuer of the
securities being offered or sold, or any director, executive officer, or general
partner of a general partner of that issuer;
(E) Any natural person whose individual net worth, or joint net worth with that
person's spouse, at the time of his purchase exceeds $1,000,000, excluding the
value of such persons' primary residence, except in the event that the mortgages
on the primary residence exceed its value, then such excess shall be deducted
from the net worth when computed.;
(F) Any natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with that person's spouse in
excess of $300,000 in each of those years and has a reasonable expectation of
reaching the same income level in the current year;
(G) Any trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is directed
by a sophisticated person as described in ss.230.506(b)(2)(ii); and
(H) Any entity in which all of the equity owners are accredited investors.
(I) An entity or person defined under SEC CFR ss.2330.001 and California
Corporations Code ss.25102(n) (by inclusion).
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An affiliate of, or person affiliated with, a specific person shall
mean a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified.
17. No Assignability. This exchange is personal to the person/entity whose name
and address appear below. I may not assign any of its rights or obligations
under this Exchange Agreement to any other person or entity.
18. Conditions. This Exchange Agreement shall become binding upon the Company
only when accepted, in writing, by the Company.
19. Effective Date. The exchange for Shares evidenced by this Exchange Agreement
shall, if accepted by the Company, be effective as soon, as all state laws have
been complied with to effectuate the transaction, and the audit of WIOG has been
delivered.
20. Conveyance. I hereby agree to convey title to all of my shares in WIOG, as
shown on the transfer records of WIOG to the Company in exchange for
_______________ Common shares of the Company (TRO), with a Power of Attorney for
such stock certificate executed and delivered herewith.
21. Further Acts. I hereby agree to execute any other documents and take any
further actions that are reasonably necessary or appropriate in order to
implement the transaction contemplated by this Exchange Agreement.
Subscriber/Exchangor
Dated: ________ ____ , 2015 /s/
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Name:
Address
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Social Security Number (For US Citizens only):
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