AGREEMENT AND PLAN OF REORGANIZATION
EXHIBIT
10.15
AGREEMENT AND
PLAN OF REORGANIZATION
This
Agreement and Plan of Reorganization (the “Agreement”) is made and entered
into effective this 14th day of November,
2017 (the “Effective
Date”), by and among Warwink Properties, LLC, a Texas
limited liability company (the “Company”), XxXxxx Petroleum
Corporation, a Texas corporation (the “Seller”), Torchlight Energy
Resources, Inc., a Nevada corporation (the “Purchaser”), and Torchlight
Wolfbone Properties, Inc., a Texas corporation (the
“Merger Sub”).
The Company, the Seller, the Purchaser, and the Merger Sub are
sometimes hereinafter collectively referred to as the
“Parties.”
WHEREAS, the respective Boards of
Directors of Purchaser and Merger Sub and the Board of Directors of
Seller, on its own behalf and in its capacity as both the Manager
and sole Member of the Company, have each determined that the
merger of the Merger Sub with and into the Company (the
“Merger”) upon
the terms and subject to the conditions set forth in this Agreement
is advisable, fair to and in the best interests of the Company and
Merger Sub, as the “Parties
to the Merger” and their respective owners and have
approved the Merger pursuant to the Plan of Merger attached hereto
as Exhibit A (the
“Plan of
Merger”);
NOW, THEREFORE, in consideration of the
premises, the mutual covenants and agreements and the respective
representations and warranties herein contained, and on the terms
and subject to the conditions herein set forth, the parties hereto,
intending to be legally bound, hereby agree as
follows:
ARTICLE I
1.1 The
Merger. At the Effective Time (as defined in
Section 1.2) and subject to the terms and conditions of this
Agreement and the Plan of Merger, Merger Sub shall be merged with
and into the Company and the separate existence of Merger Sub shall
thereupon cease, in accordance with the applicable provisions of
the Texas Business Organizations Code (the “Act”). the Company shall be the
surviving organization in the Merger (sometimes referred to herein
as the “Surviving
Organization”) and will continue to be governed by the
laws of the State of Texas, and the existence of the Company will
continue. The Merger will have the effects specified by the
Act.
1.2 Closing
and Effective Time of the Merger. The closing
(the “Closing”)
will take place at the Purchaser’s offices or at such other
place as agreed upon among the Parties on the later of (a) the
Effective Date or (b) as soon as practicable following fulfillment
or waiver of the conditions specified in Article VII and Article
VIII of this Agreement (the “Closing Date”). In addition to the
other actions contemplated hereunder, the Parties to the Merger
will cause a Certificate of Merger (the “Certificate of Merger”) to be
filed with the office of the Secretary of State of the State of
Texas as provided in Section 10.151 of the Act, and will cause the
Plan of Merger to be on file at the principal place of business of
the Company. Subject to and in accordance with the laws of the
State of Texas, the Merger will become effective upon the filing of
the Certificate of Merger with the office of the Secretary of State
of the State of Texas, or such later time or date as may be
specified in the Certificate of Merger (the “Effective Time”).
ARTICLE II
ARTICLE III
ARTICLE
IV
The
Company and the Seller, jointly and severally, hereby represent and
warrant to Purchaser as follows:
(i) The
Company is a Texas limited liability company, duly organized and
validly existing under the laws of the state of Texas, (ii) has all
requisite power and authority to carry on its business, and (iii)
is duly qualified to transact business and is in good standing in
all jurisdictions where its ownership, lease or operation of
property or the conduct of its business requires such
qualification, except where the failure to do so would not have a
material adverse effect to the Company.
(ii) The
Company Membership Interest is the sole ownership interest in the
Company. There is no other class of equity interest authorized or
issued by the Company. The Company Membership Interest is owned
beneficially and of record by the Seller free and clear of any
liens, claims, equities, charges, options, rights of first refusal
or encumbrances. The Company has no obligation to repurchase,
reacquire, or redeem any of its outstanding equity interests. There
are no outstanding securities convertible into or evidencing the
right to purchase or subscribe for any equity interests of the
Company, there are no outstanding or authorized options, warrants,
calls, subscriptions, rights, commitments or any other agreements
of any character obligating the Company to issue any securities
convertible into or evidencing the right to purchase or subscribe
for any security of the Company, and there are no agreements or
understandings with respect to the voting, sale, transfer or
registration of any equity interests of the Company.
(i) All
action on the part of the Company necessary for the authorization,
execution, delivery and performance of this Agreement and all
documents related to consummate the transactions contemplated
herein have been taken by the Company. The Company has the
requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement, when duly
executed and delivered in accordance with its terms, will
constitute a valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as may
be limited by bankruptcy, insolvency, reorganization, and other
similar laws of general application relating to or affecting
creditors’ rights and to general equitable
principles.
(ii) All
action on the part of the Seller necessary for the authorization,
execution, delivery and performance of this Agreement and all
documents related to consummate the transactions contemplated
herein has been taken by the Seller. The Seller has the requisite
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement, when duly
executed and delivered in accordance with its terms, will
constitute a valid and binding obligation of each of the Seller,
enforceable against it in accordance with its terms, except as may
be limited by bankruptcy, insolvency, reorganization, and other
similar laws of general application relating to or affecting
creditors’ rights and to general equitable
principles.
To
assist in implementing the above provisions, the Seller hereby
consents to the placement of the legend, or a substantially similar
legend, set forth below, on all certificates representing ownership
of the Purchaser Common Stock acquired hereby until the Purchaser
Common Stock have been sold, transferred, or otherwise disposed of,
pursuant to the requirements hereof. The legend shall read
substantially as follows:
“THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES ACTS. THESE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT,
ARE RESTRICTED AS TO TRANSFERABILITY, AND MAY NOT BE SOLD,
HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE
REGISTRATION AND QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS
THEREFROM.”
ARTICLE
V
The
Purchaser and Merger Sub hereby represent and warrant to the
Company and the Seller as follows:
(a) The
Purchaser (i) is a corporation duly organized, validly existing and
in good standing under the laws of the state of Nevada, (ii) has
all requisite power and authority to carry on its business, and
(iii) is duly qualified to transact business and is in good
standing in all jurisdictions where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except where the failure to do so would not have a
material adverse effect to the Purchaser.
(b) The
Merger Sub (i) is a corporation duly organized, validly existing
and in good standing under the laws of the state of Texas, (ii) has
all requisite power and authority to carry on its business, and
(iii) is duly qualified to transact business and is in good
standing in all jurisdictions where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except where the failure to do so would not have a
material adverse effect to the Merger Sub.
ARTICLE VI
[INTENTIONALLY
OMITTED]
ARTICLE VII
Each
obligation of the Seller and the Company to be performed on the
Closing Date shall be subject to the satisfaction of each of the
conditions stated in this Article VII, except to the extent that
such satisfaction is waived by the Seller and the Company in
writing:
Page 10 of
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Plan of Reorganization
ARTICLE
VIII
Each
obligation of Purchaser and Merger Sub to be performed on the
Closing Date will be subject to the satisfaction of each of the
conditions stated in this Article VIII, except to the extent that
such satisfaction is waived by Purchaser in writing.
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Plan of Reorganization
ARTICLE IX
Page 12 of
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Plan of Reorganization
ARTICLE X
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(a)
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If to the Seller
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Xxxx XxXxxx
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or the Company:
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000 X. Xxxxx, Xxxxx 000
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Xxxxxxx, Xxxxx 00000
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Page 13 of
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Plan of Reorganization
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with a copy to:
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Xxxxxxx X. Xxxxxx
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Xxxxxx Xxxxxxx, PC
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000 X. 0xx
Xx, Xxx. 000
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Xxxx Xxxxx, Xxxxx 00000
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(b)
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If to the Purchaser
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Torchlight Energy Resources, Inc.
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or Merger Sub:
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Attn: Xxxx Xxxx, President
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0000 X. Xxxxx Xxxxxxx, Xxxxx 0000
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Xxxxx, Xxxxx 00000
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with a copy to:
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Xxxxxx X. Xxxxxxx
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Xxxxxxx, Xxxxx & Xxxxxxxxx
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0000 Xxxxxxxx Xxxxx, Xxxxx 0000
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Xxxxxxx, Xxxxx 00000
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Xxxxx X. XxXxxxx
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XxXxxxx Law PC
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0000 Xxxxx Xxxx Xxxx, Xxxxx 000
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Xxxxxxx, Xxxxx 00000
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A
notice or communication will be effective (i) if delivered in
Person or by overnight courier, on the business day it is delivered
and (ii) if sent by registered or certified mail, three (3)
business days after dispatch.
Page 14 of
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Plan of Reorganization
Page 15 of
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Plan of Reorganization
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE.]
Page 16 of
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Plan of Reorganization
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WARWINK PROPERTIES, LLC, a Texas limited liability
company
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By:
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XxXxxx Petroleum Corporations, its Manager
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By:
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/s/ Xxxx XxXxxx, Xx.
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Xxxx XxXxxx, Xx., President
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SELLER
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XXXXXX PETROLEUM CORPORATION, a Texas corporation
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By:
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/s/ Xxxx XxXxxx, Xx.
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Xxxx XxXxxx, Xx., President
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PARENT
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TORCHLIGHT ENERGY RESOURCES, INC., a Nevada
corporation
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By:
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/s/ Xxxx Xxxx
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Xxxx Xxxx, CEO
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MERGER SUB
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TORCHLIGHT WOLFBONE PROPERTIES, INC. a Texas
corporation
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By:
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/s/ Xxxx Xxxx
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Xxxx Xxxx, President
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Page 17 of 17 -
Agreement and Plan of Reorganization
EXHIBIT A
TO THE AGREEMENT AND PLAN OF REORGANIZATION
PLAN OF MERGER
This
PLAN OF MERGER (the "Plan of
Merger") is made as of the 14th day of November,
2017 by and among TORCHLIGHT ENERGY
RESOURCES, INC., a Nevada corporation
(“Purchaser”), TORCHLIGHT WOLFBONE PROPERTIES, INC., a
Texas corporation (“Merger Sub”), and WARWINK PROPERTIES, LLC, a Texas limited
liability company (“Target”) (Merger Sub and Target
being hereinafter collectively referred to as the “Parties to
the Merger”).
A. Prior
to the execution of this Plan of Merger, Purchaser, Merger Sub, and
Target have entered into an Agreement and Plan of Reorganization
dated as of November 14, 2017 (the “Plan of
Reorganization”) providing for certain representations,
warranties, and agreements in connection with the transaction
contemplated.
B. The
Boards of Directors of Purchaser and Merger Sub and the Manager and
Member of Target have approved the acquisition of Target by
Parent.
C. The
Boards of Directors of Purchaser and Merger Sub and the Manager and
Member of Target have approved the merger of Merger Sub into Target
(the “Merger”) upon the terms and subject to the
conditions set forth herein and in the Plan of
Reorganization.
D. For
federal income tax purposes, it is intended that the Merger shall
qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the
“Code”).
ARTICLE I
THE MERGER
1.1 The
Merger. At the Effective Time (as defined in
Section 1.2) and subject to the terms and conditions of this Plan
of Merger and the Plan of Reorganization, Merger Sub shall be
merged with and into Target and the separate existence of Merger
Sub shall thereupon cease, in accordance with the applicable
provisions of the Texas Business Organizations Code (the
“Act”). Target shall be the surviving organization in
the Merger (sometimes referred to herein as the “Surviving
Organization”) and will continue to be governed by the laws
of the State of Texas, and the separate existence of Target will
continue. The Merger will have the effects specified by the
Act.
Page 18 of
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1.2 Effective
Time. As soon as practicable following
fulfillment or waiver of the conditions specified in Article VII
and Article VIII of the Plan of Reorganization and provided that
this Plan of Merger has not been terminated or abandoned pursuant
to Article IV hereof, the Parties to the Merger will cause a
Certificate of Merger (the “Certificate of Merger”) to
be filed with the office of the Secretary of State of the State of
Texas as provided in Section 10.151 of the Act, and will cause this
Plan of Merger to be on file at the principal place of business of
the Target. Subject to an in accordance with the laws of the State
of Texas, the Merger will become effective upon the filing of the
Certificate of Merger with the office of the Secretary of State of
the State of Texas , or such later time or date as may be specified
in the Certificate of Merger (the “Effective
Time”).
ARTICLE II
THE SURVIVING ORGANIZATION
2.1 Certificate
of Formation. The Certificate of Formation of
Target, as in effect immediately prior to the Effective Time shall
be the Certificate of Formation of the Surviving Organization until
the same shall be altered or amended.
ARTICLE III
CONVERSION OF SECURITIES
3.1 Conversion
of Capital Stock of Merger Sub. As of the Effective Time, by
virtue of the Merger and without any action on the part of
Purchaser, Merger Sub, Target or the respective shareholders of
members thereof, all of the outstanding shares of the capital stock
of Merger Sub immediately prior to the Effective Time shall be
automatically converted into and become the sole membership
interest in the Surviving Organization, and such membership
interest in the Surviving Organization shall constitute all of the
issued and outstanding membership interests in the Surviving
Organization immediately following the Effective Time.
3.2 Conversion
of Membership Interest in Target.
(a) Aggregate
Merger Consideration. The aggregate merger consideration
payable for the issued and outstanding membership interest in
Target (the “Merger Consideration”) shall be 2,500,000
restricted shares of common stock, par value $0.001 per share, of
Purchaser (“Purchaser Common Stock”). The issuance of
the Purchaser Common Stock will not be registered.
A-2
(b) Cancellation
of Target Membership Interest. As of the Effective Time, by
virtue of the Merger and without any action on the part of
Purchaser, Merger Sub, Target or the respective shareholders of
members thereof, the membership interest in Target issued and
outstanding immediately prior to the Effective Time (the
“Target Membership Interest”) shall cease to exist;
provided, however, that the holder of the Target Membership
Interest shall be entitled to the Merger Consideration in the form
of Purchaser Common Stock.
(c)
Payment of Merger
Consideration. At the Closing (as defined in the Plan of
Reorganization), Purchaser will deliver stock certificates
evidencing the Purchaser Common Stock.
ARTICLE IV
TERMINATION AND AMENDMENT
4.1 Termination. This
Plan of Merger shall terminate in the event of and upon termination
of the Plan of Reorganization.
4.2 Amendment.
This Plan of Merger may not be amended except by an instrument in
writing signed on behalf of each of the parties
hereto.
4.3 Severability.
Whenever possible, each provision of this Plan of Merger shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Plan of Merger is held
to be prohibited by or invalid under applicable law, such provision
will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Plan of
Merger.
4.4 Assignment,
Successors and Assigns. The provisions hereof shall inure to
the benefit of, and be binding upon, the successors and permitted
assigns of the parties hereto. No party hereto may assign its
rights or delegate its obligations under this Plan of Merger
without the prior written consent of the other parties hereto,
which consent will not be unreasonably withheld.
4.5 Entire
Agreement. This Agreement and the Plan of Reorganization
constitute the full and entire understanding and agreement between
the parties with regard to the subject matter hereof and thereof
and supersede and cancel all prior representations, alleged
warranties, statements, negotiations, undertakings, letters,
acceptances, understandings, contracts and communications, whether
verbal or written among the parties hereto and thereto or their
respective agents with respect to or in connection with the subject
matter hereof.
4.6 Choice
of Law. This Plan of Merger shall be governed by, and
construed in accordance with, the laws of the State of Texas
without regard to principles of conflict of laws. In any action
between or among any of the parties, whether arising out of this
Plan of Merger or otherwise, each of the parties irrevocably
consents to the exclusive jurisdiction and venue of the federal and
state courts located in Collin County, Texas.
A-3
4.7 Execution.
This Plan of Merger may be executed in two or more counterparts,
all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a
“.pdf” format data file, such signature shall create a
valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect
as if such facsimile or “.pdf” signature page were an
original thereof.
4.8 Section
Headings. The section and subsection headings in this Plan
of Merger are used solely for convenience of reference, do not
constitute a part of this Plan of Merger, and may not affect its
interpretation.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
A-4
IN WITNESS WHEREOF, the parties, by and
through their respective authorized representatives, have executed
this Plan of Merger effective as of the day first written
above.
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TORCHLIGHT ENERGY
RESOURCES, INC., a Nevada corporation
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By:
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/s/ Xxxx Xxxx
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Xxxx Xxxx, CEO
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TORCHLIGHT
WOLFBONE PROPERTIES, INC., a Texas corporation
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By:
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/s/ Xxxx Xxxx
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Xxxx
Xxxx, President
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WARWINK
PROPERTIES, LLC, a Texas limited liability company
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By: | XxXxxx Petroleum Corporations, its Manager |
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By:
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/s/ Xxxx XxXxxx, Xx.
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Xxxx
XxXxxx, Xx., President
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A-5
Schedules
Schedule
4.3 -- Assets
[DESCRIBE]
