CoJax Oil & Gas Corp 8-K, filed Jun 22, 2020
CoJax Oil & Gas Corp (CJAX)
About this 8-K
CoJax Oil & Gas Corp filed this 8-K on June 22, 2020.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.01: Completed an acquisition or sale of assets
- Item 3.02: Unregistered sale of equity
- Item 3.03: Change to shareholders' rights
- Item 5.01: Change in control
- Item 5.06: Change in shell company status
- Item 5.07: Shareholder vote results
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 16, 2020 (June 16, 2020)
CoJax Oil and Gas Corporation
(Exact name of registrant as specified in its charter)
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Virginia |
| 333-232845 |
| 46-1892622 |
(State or other jurisdiction of incorporation) |
| (Commission File Number) |
| (I.R.S. Employer Identification No.) |
Jeffrey J. Guzy, Chief Executive Officer
3033 Wilson Boulevard, Suite E-605
Arlington, Virginia 22201
(703) 216-8606
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
X | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging Growth Company [X]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
| Trading Symbol(s) |
| Name of each exchange on which registered |
NoneN/AN/A
Table of Contents
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Description | Page | |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS | 2 | |
EXPLANATORY NOTE | 3 | |
NO OFFER OR SOLICITATION | 3 | |
Item 1.01 | Entry into a Material Definitive Agreement | 4 |
Item 2.01 | Consummation of Acquisition or Disposition of Assets | 7 |
| Description of Business | 7 |
| Description of Properties | 7 |
| Risk Factors | 7 |
| Management’s Discussion and Analysis of Financial Condition and Results of Operations | 19 |
| Security Ownership of Certain Beneficial Owners and Management | 19 |
| Directors, Executive Officers, Promoters and Control Persons | 19 |
| Executive Compensation | 20 |
| Market Price of and Dividends on Common Stock and Related Shareholder Matters | 22 |
| Description of Securities | 22 |
| Legal Proceedings | 26 |
| Indemnification of Directors and Officers | 26 |
Item 3.02 | Unregistered Sales of Equity Securities | 27 |
Item 3.03 | Material Modification to Rights of Security Holders | 27 |
Item 5.01 | Changes in Control of Registrant | 27 |
Item 5.06 | Change in Shell Company Status | 27 |
Item 5.07 | Submission of Matters to a Vote of Security Holders | 28 |
Item 8.01 | Other Events | 28 |
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Item 9.01 | Financial Statements and Exhibits | 28 |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Current Report on Form 8-K (“Form 8-K”) by CoJax Oil and Gas Corporation (“CoJax,” “we,” or “our”) contains forward-looking statements, including, without limitation, in the sections captioned “Description of Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Plan of Operations,” in Exhibit 99.1 to this Form 8-K and elsewhere. Any and all statements contained in this Form 8-K that are not statements of historical fact may be deemed forward-looking statements. Terms such as “may,” “might,” “would,” “should,” “could,” “project,” “estimate,” “Pro-forma,” “predict,” “potential,” “project,” “strategy,” “anticipate,” “attempt,” “develop,” “plan,” “help,” “believe,” “continue,” “intend,” “expect,” “future,” and terms of similar import (including the negative of any of the foregoing) may be intended to identify forward-looking statements. However, not all forward-looking statements may contain one or more of these identifying terms. Forward-looking statements in this Form 8-K may include, without limitation, statements regarding (i) the plans and objectives of management for future or acquired business or assets as well as the management of any acquired assets or business, (ii) a projection of income (including income/loss), earnings (including earnings/loss) per share, capital expenditures, dividends, capital structure or other financial items, (iii) our future financial performance, including any such statement contained in a discussion and analysis of financial condition by management or in the results of operations included pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC” or “Commission”), (iv) estimates about crude oil reserves and natural gas reserves and their respective values, and (v) the assumptions underlying or relating to any statement described in points (i), (ii), (iii) or (iv) above.
The forward-looking statements are not meant to predict or guarantee actual results, performance, events or circumstances and may not be realized because they are based upon our current projections, plans, objectives, beliefs, expectations, estimates, and assumptions and are subject to a number of risks and uncertainties and other influences, many of which CoJax has no control over. Actual results and the timing of certain events and circumstances may differ materially from those described by the forward-looking statements as a result of these risks and uncertainties. Factors that may influence or contribute to the inaccuracy of the forward-looking statements or cause actual results to differ materially from expected or desired results may include, without limitation, our inability to properly integrate and manage acquired businesses and assets; our inability to obtain adequate financing; the significant length of time and risks associated with oil and gas exploration, drilling and production and related insufficient cash flows and resulting illiquidity; our inability to expand or establish or maintain any profitable drilling rigs; significant and potentially
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expensive federal and state government regulation of oil and gas production industry and related environmental compliance burdens; inability to find and exploit profitable oil wells and financial impact of drilling “dry” wells; unpredictability and volatility in the market price of crude oil due to Coronavirus/COVID-19 pandemic (“COVID-19) and disputes over production levels by members of Organization of Petroleum Exporting Countries (“OPEC”); inability to establish a public market for CoJax Common Stock; existing or increased competition; results of arbitration and litigation; stock volatility and illiquidity; our failure to implement our business plans or strategies; and risks associated with being a small independent oil production company in a highly competitive industry. A description of some of the risks and uncertainties that could cause our actual results to differ materially from those described by the forward-looking statements in this Form 8-K appears in the section captioned “Risk Factors” and elsewhere in Exhibit 99.1 to this Form 8-K.
Readers are cautioned not to place undue reliance on forward-looking statements because of the risks and uncertainties related to them and to the risk factors. CoJax disclaims any obligation to update the forward-looking statements contained in this Form 8-K to reflect any new information or future events or circumstances or otherwise unless otherwise required by law.
Readers should read this Form 8-K in conjunction with the discussion under the caption “Risk Factors,” our financial statements and the related notes thereto, Exhibit 99.1 to this Form 8-K, and other documents which we may file from time to time with the SEC.
EXPLANATORY NOTE
The Company was incorporated on November 13, 2017, under the laws of the Commonwealth of Virginia. The Company was formed with the specific and stated business purpose to: (1) acquire oil drilling and production rights to properties in the United States, specifically with oil reserve reports showing sufficient oil reserves to justify drilling and to produce crude oil for sale to any available domestic or international buyers; or (2) to acquire a company with existing crude oil drilling and production rights and, if possible, existing oil drilling rigs and crude oil production. Until the acquisition agreement described below, CoJax had not: entered into any agreement to acquire or acquired any oil drilling and production rights, commenced production of crude oil, or acquired a company with oil and gas drilling rights and actual crude oil production. The Company has had no operating revenues since incorporation.
NO OFFER OR SOLICITATION
This communication is not intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any shareholder vote in any jurisdiction pursuant to the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended, or under an exemption from registration. Subject to certain exceptions to be approved by the relevant regulators or certain facts to be ascertained, any offer and sale of securities by CoJax will not be made directly or indirectly, in or into any jurisdiction where to do so would constitute a violation of the laws of such jurisdiction, or by use of the mails or by any means or instrumentality (including without limitation, facsimile transmission, telephone, and the internet) of interstate or foreign commerce, or any facility of a national securities exchange, of any such jurisdiction.
This Form 8-K contains summaries of the material terms of various agreements executed in connection with the transactions described below. The summaries of these agreements are subject to and are qualified in their entirety by, reference to these agreements, which are filed as exhibits hereto and incorporated herein by reference.
Certain Terms. As used in this Form 8-K, “oil” means crude oil and “gas” means natural gas, unless stated otherwise or the context indicates otherwise.
Item 1.01 Entry Into a Material Definitive Agreement. Exchange. On June 16, 2020, CoJax Oil and Gas Corporation, Inc., a Virginia corporation, (“CoJax” or “Company”) and Barrister Energy, LLC, a Mississippi limited liability company, (“Barrister”) entered into an Acquisition Agreement (“Agreement”) whereby CoJax will issue Seven Million Five Hundred Thousand (7,500,000) shares of CoJax Common Stock, $0.01 par value per share,
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(“CoJax Shares”) and assume Two Million Seven Hundred Thousand Dollars and No Cents ($2,700,000) of Barrister debts (“Assumed Debt”) in exchange for all of the issued Membership Interests held by Barrister Members. The conduct and consummation of the closing of the Agreement and exchange of CoJax Shares for Membership Interests of Barrister held by its Members in accordance with the Agreement (“Exchange”) are subject to certain conditions, which conditions must be met to consummate the Exchange. The Agreement also affords CoJax and Barrister Members with the right to rescind the Exchange if certain conditions are not timely satisfied. See: “Other Conditions to Consummation of the Exchange” below for conditions to the consummation of the Exchange. Rescission rights of CoJax and Barrister are also discussed below in this Item 1.01.
Assumed Debt is described in Exhibit 99.1 to this Form 8-K and CoJax’s agreement to assume the Assumed Debt is Exhibit 2.1.1 to this Form 8-K.
CoJax is assuming the Assumed Debts under the Agreement and agreement to assume the Assumed Debt. The Assumed Debt is secured by oil and gas exploration and production assets acquired by Barrister from Central Operating, LLC under the June 1, 2019 Purchase and Sale Agreement, and related secured promissory note and Security Agreement, both dated June 1, 2019. There is no interest owed under the promissory note, but the principal is due in a lump sum payment due on June 1, 2021. Purchase and Sale Agreement, promissory note and Security Agreement are attached as Exhibit 2.2 to this Form 8-K report any summary of those documents is qualified in its entirety by reference to the actual documents. These agreements are governed under the laws of the State of Mississippi.
The Assumed Debt is a significant financial burden for CoJax and CoJax does not have the funds, assets, or funding commitments as of the date of the filing of this Form 8-K to pay off the Assumed Debt. CoJax will have to raise funds to pay off the Assumed Debt or restructure the Assumed Debt. There is no assurance, especially in light of the chaotic economic conditions imposed by COVID-19 pandemic on the U.S. and world economies and the oil production industry and the uncertainty about when that impact will end, that CoJax can timely pay off or restructure the Assumed Debt.
CoJax is subject to the reporting requirements of Section 15(d) the Securities Exchange Act of 1934, as amended, while Barrister is a privately held company.
Post-Exchange Operations. Upon consummation of the Exchange, CoJax will be the sole Member of Barrister, Barrister will be a wholly-owned operating subsidiary of CoJax, and the former Members of Barrister will be Common Stock shareholders of the Company. None of the Barrister Members will become officers or directors of the Company upon consummation of the Exchange under the Agreement. The incumbent management of Barrister will continue to manage and operate Barrister after the consummation of the Exchange. The consummation of the Exchange will cause a change in control of CoJax (See: Item 5.01 below).
Other Conditions to Consummation of Exchange. The principal conditions to closing the Exchange and Agreement are: (1) completion of audited and pro forma financial statements for CoJax and Barrister required to be filed with this Form 8-K; (2) Barrister owns and has good and marketable title to, or a valid leasehold interest in, the properties and assets used by it, or shown on the most recent balance sheet or acquired after the date thereof, free and clear of all liens or encumbrances (other than encumbrances and liens permitted by CoJax and the debt being assumed by CoJax under the Agreement); (3) the Barrister assets acquired under the Agreement are sufficient for the continued conduct of the business by Barrister after the closing of the Exchange in substantially the same manner as conducted prior to the closing; and (4) compliance with applicable federal and state securities laws for the Exchange.
Certain Terms of Agreement: (1) Rescission Rights of Members. Barrister’s Members have the right to jointly, but not severally, rescind the Exchange upon occurrence of any of the triggering event prior to the expiration of the “Rescission Period”, which period commences with the closing of the Agreement and ends on July 1, 2021: (a) CoJax files a petition for protection from creditors under any chapter of the U.S. Bankruptcy Code and that petition is not withdrawn within sixty (60) days; or (b) CoJax is declared insolvent by a court of competent jurisdiction, or CoJax’s Board of Directors approves a plan of complete liquidation; or (c) if CoJax has not been issued a trading symbol for its Common Stock by Financial Industry Regulatory Authority or “FINRA” within ninety (90) days of the consummation of the closing of the Agreement; or (d) if CoJax’s Common Stock has not been listed on: the New York
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Stock Exchange or NYSE American Exchange; or quoted on NASDAQ Capital Markets; or quoted or listed on any successor market to the foregoing, by the first annual anniversary of the effective date of the Agreement.
(2) Rescission Rights of CoJax: CoJax will have the right to rescind the Exchange prior to the expiration of Rescission Period (as defined above) upon the occurrence of any of the following: (a) any Member files a petition for protection from creditors under any chapter of the U.S. Bankruptcy Code, and that petition is not withdrawn within sixty (60) days, a receiver or other liquidating officer is appointed for substantially all of the assets or business of a Member, (b) or if Barrister makes an assignment for the benefit of creditors of all or substantially all of its operating assets; or (c) if CoJax does not acquire 100% of Membership Interests of Barrister in the Exchange at the closing of the Agreement.
(3) Assumption of Assumed Debt. If the Exchange is rescinded by Company or Members under the Agreement, then Barrister is required to assume the unpaid balance of the Assumed Debt from the Company and to do so concurrently with the rescission of the Exchange. The Assumed Debt resulted from Barrister purchasing its current oil and gas exploration and production rights and related operating assets from Central Operating, LLC, a Mississippi limited liability company, under a June 1, 2019 Purchase and Sale Agreement, which agreement is filed as an exhibit to this Form 8-K as Exhibit 2.2 (“2019 Purchase Agreement”).
(4) Dispute Resolution. Except for a dispute, claim, cause of action or controversy arising out of or relating to or based on Barrister not reassuming the Assumed Debt upon a timely rescission of the Exchange by Barrister Members, any other dispute, claim, cause of action or controversy arising out of or relating to or based on the rescission of the Exchange and related provisions of this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, shall be determined by mandatory arbitration in Jackson, Mississippi before one (1) arbitrator. The JAMS Optional Arbitration Appeal Procedure will be used in any arbitration. CoJax may enforce Barrister’s obligation to re-assume the Assumed Debts if and upon Barrister Members timely rescinding the Exchange by injunctive action.
(5) Indemnification. The Agreement contains customary representations and warranties and covenants of each party and customary closing conditions. Breaches of the representations and warranties will be subject to customary indemnification provisions, subject to specified aggregate limits of liability. Specifically, The Agreement has mutual indemnification provisions covering breach of Agreement and inaccuracies in representations and warranties. Barrister Members also indemnify CoJax and its affiliates for any criminal act, violation of securities laws, fraud, or gross negligence by indemnifying Member and Barrister indemnifies CoJax and its affiliates for certain taxes due as of the closing of the Exchange. Indemnification liability for parties to the Agreement is capped at $100,000.
(6) Costs. All costs incurred in connection with the Exchange and Agreement shall be paid by the party incurring such cost or expense. No party will pay or be liable for or owe any break-up fee or termination fee to any of the other parties in the event that the Agreement is terminated in accordance with its terms and conditions prior to or after consummation of the Exchange or the Exchange is rescinded in accordance with the terms and conditions of the Agreement.
(7) Brokers. No broker’s fees or finder’s fees were paid or owed by CoJax in connection with the Exchange or Agreement.
(8) Governing Law. The Agreement is governed by the laws of the State of Mississippi.
(9) Restricted Shares. CoJax Shares are “restricted securities” under Rule 144 of the Securities Act of 1933, as amended (“Securities Act”) and under applicable state securities laws and regulations. Each of the Barrister Members receiving the CoJax Shares in the Exchange will not sell, transfer, assign, pledge, hypothecate or otherwise dispose of any of the CoJax Shares in any manner which would violate any federal or applicable state securities laws or regulations or eliminate the availability to CoJax of its exemption from registration requirements, which exemption is relied upon by CoJax for issuance of CoJax Shares in the Exchange.
(10) Warranties. The Agreement contains customary representations and warranties. The representations, warranties, and covenants of each party set forth in the Agreement have been made only for the purposes of, and were and are solely for the benefit of the parties to, the Agreement, may be subject to limitations agreed upon by the contracting
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parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Accordingly, the representations and warranties may not describe the actual state of affairs at the date they were made or at any other time, and investors in CoJax should not rely on them as statements of fact.
(11) Registration Rights. CoJax has not agreed to register under the Securities Act the resale of the CoJax Shares issued in the Exchange. CoJax Common Stock, including CoJax Shares, is not yet qualified for resales under Rule 144 of the Securities Act.
Qualification of Summary. The foregoing description of the Agreement above is subject to and qualified in its entirety by the Agreement, attached as Exhibit 2.1 hereto, which is incorporated in this Item 1.01 by reference in its entirety. Summaries of any agreements or reports or instruments are qualified in their entirety by reference to the agreement, report, or instrument (as filed as an exhibit to this Form 8-K).
Common Stock Listing. The CoJax Common Stock is not listed on any national securities exchange or national quotation system, and the Company has not obtained a trading symbol for its Common Stock. After signing the Agreement, the Company will seek a trading symbol within the next 90 days as well as seek quotation of its Common Stock on NASDAQ within the year following the closing of the Exchange.
Accounting Treatment. While CoJax is the surviving corporation for legal purposes, Barrister is deemed to be the acquirer in the Exchange for accounting purposes and, consequently, the assets and liabilities and the historical operations that are reflected in the financial statements are those of Barrister and will be recorded at the historical cost basis of Barrister. Upon consummation of the Exchange, there will be a change in control of the CoJax. CoJax will continue to be a “smaller reporting company” as defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), following the consummation of the Exchange.
Shareholder and Members Approval of Exchange. Approval of the Agreement and Exchange is required under applicable state laws. CoJax has one shareholder for its Common Stock and one director. The sole shareholder of and director of CoJax approved the Agreement and Exchange at a special combined meeting of CoJax Board of Directors and Shareholders held on June 13, 2020. The sole shareholder and director of CoJax is Jeffrey J. Guzy, who is also CoJax’s Chief Executive Officer and the founder of CoJax. Barrister’s Members approved the Agreement and Exchange on May 14, 2020.
Closing of Exchange. The closing of the Exchange will occur at 5:00 p.m., Eastern Standard Time, on a weekday within fifteen (15) days after the date on which: (1) CoJax, Barrister and Barrister Members sign the Agreement; (2) the audit conducted by CoJax’s auditor of the transactions contemplated under the Agreement and the parties thereto is completed; (3) the audited financial statements and footnotes, along with the auditor’s opinion letter, (collectively, the “Audit Report”) are delivered to the CoJax and (4) Barrister, and Barrister Members receive the Audit Report; and (5) Barrister Members exchange all of their Barrister Membership Interests for CoJax Shares at the closing of the Exchange. CoJax expects the closing of the Exchange to occur no later than July 2, 2020.
Item 2.01 Completion of Acquisition or Disposition of Assets.
General. The consummation of the Exchange is subject to a number of conditions and the rescission rights by Barrister Members and CoJax. The following describes certain aspects of the operations of CoJax and Barrister as of the date of the filing of this Form 8-K and, upon consummation of the Exchange, with Barrister as a wholly-owned operating subsidiary of CoJax.
Description of CoJax Business. Company is an early-stage development company formed for the sole purpose of acquiring oil and natural gas oil exploration and production rights for properties in the Gulf States region of the United States of America and then operating as a small, independent oil producer. The primary business focus of CoJax is the production of crude oil with the production of natural gas as a possible secondary business line. The focus on Gulf States region is based on the presence of “light sweet” crude oil because it is easier to refine or distill, and transport than other grades of crude oil, especially “heavier” crude oils extracted from tar sands or “fracked” from the shale formation. These heavier grades of crude oil require higher heat and, consequently, more energy and steps to refine
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into useful products. Barrister has oil and gas exploration and production rights and limited drilling operations in the Gulf States.
Under the CoJax business plan, the acquisition of oil exploration and production capacity may be achieved by obtaining funding to purchase oil exploration and production leasehold interests and then funding erecting oil drilling rigs or acquiring a company with existing oil exploration and production lease rights and ability to drill for oil. The Agreement is the Company’s initial attempt to acquire oil and gas leases, rights, or interests to explore and produce oil in the Gulf States Region and, subject to obtaining adequate funding for drilling operations, expand existing oil production. The primary focus of the Company upon commencement of oil drilling and production will be the sale of oil, but the sale of natural gas may be pursued as a secondary business of the Company if it can be profitably pursued.
Description of Barrister Business. The description of Barrister’s business is set forth in Exhibit 99.1 to this Form 8-K.
Description of Properties. CoJax owns no real property, oil and gas exploration, and production rights or leasehold interests. The properties of Barrister are described in Exhibit 99.1 to this Form 8-K and is incorporated herein by reference. Upon consummation of the Exchange, CoJax will own Barrister as Barrister’s parent company and sole Member.
RISK FACTORS. The following Risk Factors apply to CoJax’s business and financial affairs, before and after the consummation of the Exchange, unless stated otherwise or the context indicates otherwise. “We,” “our,” “us,” and “Company” refer to CoJax with Barrister as a wholly-owned subsidiary of CoJax, assuming consummation of the Exchange. “CoJax” will refer to only CoJax unless the context indicates otherwise. References to “operating assets” means Barrister’s oil and gas exploration and production rights and drilling equipment as of the date of the Exchange, unless the reference is expressly or by context restricted to CoJax’s operating assets.
Risks related to CoJax and Barrister Business:
CoJax is assuming the $2.7 Million Promissory Note issued by Barrister to acquire its Oil and Gas Exploration and Production Rights on June 1, 2019 - the Assumed Debt. The Assumed Debt is due and payable in a lump sum on June 1, 2021. CoJax will have to raise money or restructure the Assumed Debt to avoid a default under the promissory note for the Assumed Debt on June 1, 2021. A default under the promissory note could result in litigation resulting in the bankruptcy or insolvency of CoJax and Barrister and possibly the loss of all of the Barrister's operating assets. The Assumed Debt is secured by the oil and gas production assets acquired by Barrister and default under the promissory note and a June 1, 2019, Security Agreement between Barrister and Central Operating, LLC, the seller of the acquired oil and gas exploration and production rights and related assets, which promissory note and Security Agreement are attached to the Purchase Agreement as filed as Exhibit 2.2 to this Form 8-K report. There is no assurance given that CoJax can pay off or restructure the Assumed Debt and avoid the catastrophic financial consequences of a default. CoJax will have to raise funds to pay off the Assumed Debt, which is a daunting task under current and projected economic and oil industry conditions imposed by the ongoing COVID-19 pandemic. There is no certainty about when the adverse impact of the COVID-19 epidemic will end. CoJax does not possess the funds, assets, or funding commitment to pay off the Assumed Debt as of the filing of this Form 8-K report. There is a substantial risk of business failure posed by the Assumed Debt to CoJax.
CoJax has no operating history with revenue-generating operations, and Barrister has a limited history of owning and operating oil and gas exploration and production rights and operations. CoJax was formed in 2017 and had no revenue-generating operations. Its management has only minimal experience in oil and gas exploration and production business. Because it lacks a history as an operating company, CoJax will rely on the skills and expertise of Barrister’s management to effectively operate and grow the oil and gas exploration and production business resulting from the consummation of the Exchange. While Barrister Members have extensive experience in oil and gas exploration and production business, Barrister acquired its oil and gas exploration and production leases and rights in June 2019 and has a limited period of managing those assets. Further, Barrister’s drilling operations are minimal. As such, CoJax and Barrister management may be unable to efficiently manage and operate any expanded, significant oil production without retaining additional experienced operational personnel and managers.
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Risks facing CoJax and Barrister as an operation are:
·they may not have sufficient capital to fund the growth of operations or produce amounts of oil to attain or sustain profitability or attain or sustain a level of profitability that permits growth in exploration and production;
·they will need additional funding to fund new drilling for oil and gas in order to achieve any profitability, and that funding may be unavailable or unavailable on affordable terms and conditions;
·the CoJax business plan and growth strategy may not be successful, and there may not be sufficient funding to provide the necessary working capital to pursue a new business plan and growth strategy;
·that fluctuations in any future operating results may be significant relative to our revenues and undermine CoJax’s-Barrister’s ability to sustain any revenue-generating operations and obtain funding for the continuation of operations;
· larger, better-capitalized competitors may be able to undermine CoJax-Barrister’s business by predatory pricing of oil to undermine demand for CoJax-Barrister oil; and
·as a small independent oil producer with very limited oil production, CoJax-Barrister may be unable to compete or establish and grow a profitable operation in the unpredictable and challenging economic and industry environment created by the COVID-19 pandemic and impact of possible disputes between OPEC members over production levels on the market price for oil – oil producers may suspend operations because the market price for oil is so low that production of oil is not profitable. In May 2020, U.S. market prices for oil fell briefly below $0 per barrel for the first time in history due to a large oversupply of oil resulting from the impact of COVID-19 pandemic on demand for oil.
CoJax’s ability to establish a profitable oil and gas exploration and production business with Barrister will depend on obtaining affordable funding to expand drilling operations. If we do not successfully address these risks, CoJax-Barrister operations could fail to attain growth and profitability. Small independent oil producers like CoJax-Barrister often experience an inability to obtain affordable debt or equity financing for expanding oil production due to limited collateral and limited oil production and resulting in limited revenues from operations. Under the chaotic market conditions for oil in 2020 to date, CoJax-Barrister may be unable to obtain funding for the growth of operations in 2020 or 2021.
Our ability to raise additional capital to fund our operations and growth may be limited. Our ability to arrange financing or otherwise access the debt or equity capital markets, either at the corporate-level or at a non-recourse project-level, may be limited or prove fruitless. Barrister is not producing sufficient cash flow to support the expansion of drilling exploration and production. Any limitations on our ability to obtain financing may have an adverse effect on our business or growth prospects or our results of operations. Financing, including the costs of such financing, will be dependent on numerous factors, including:
·general economic and capital market conditions, including the then-prevailing interest rate environment;
·credit availability from banks and other financial institutions willing to lend to small oil production
·investor confidence in us and our ability to increase oil production from the operating assets;
·our financial performance, especially our cash flow and profitability from operations or lack thereof;
·our level of any of our indebtedness and our compliance with covenants in debt agreements for such financing;
·attaining and maintenance of acceptable credit ratings or credit quality; and
·provisions of tax and securities laws that may impact raising capital.
We may not be successful in obtaining financing for these or other reasons. Our failure to obtain necessary capital or enter into new or replacement financing arrangements will have a material adverse effect on our business, financial condition, results of operations, and cash flows. CoJax-Barrister needs additional working capital to fund the expansion of drilling operations in order to progress beyond a subsistence level of revenues.
The oil and gas production business is a highly competitive and highly capital-intensive industry, and any oil production may be insufficient to grow or even fund or sustain revenue-generating operations. The oil and gas exploration drilling and exploration business is capital intensive due to the cost of experienced personnel, equipment,
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and other assets required to drill, produce and store oil, regulatory compliance, and responding to competition and volatile oil market prices. Drilling requires upfront operational costs with no guarantee that oil production will cover such expenses. “Dry” holes can adversely impact or undermine small oil producers due to losses from the dry hole coupled with the inability to raise additional working capital. The actual amount and timing of future capital expenditures may differ materially from estimates as a result of, among other things, oil prices, actual drilling results; the availability of drilling rigs and other services and equipment, and regulatory, technological and competitive developments. A reduction in commodity prices from current levels may result in a decrease in our actual capital expenditures, which would negatively impact our ability to grow production.
Some of the oil industry risks are:
·the instability of market prices for crude oil and inability of producers to predict, control, plan and sell based on stable market prices;
·inability to produce profitable production from existing proved oil reserves;
· costs and financial risks of increasing the level of hydrocarbons from existing wells;
·even with funding, we may be unable to acquire, locate and produce new oil reserves;
·inability to control or fund operating expenses; and
·inability to access the capital markets – as of the date of this Form 8-K, CoJax Common Stock shares are not listed or quoted on any public securities market and have no liquidity, and operating assets may be insufficient to attract debt financing.
The fact that CoJax Common Stock is not publicly traded severely hampers or prevents CoJax from resorting to public equity markets for funding. Even if public trading commences in CoJax Common Stock, the lack of market makers and an established trading market will result in low market prices and limited liquidity for CoJax Common Stock, which further hinders or may prevent CoJax from raising capital in the public equity markets. Barrister operating assets may not be sufficient to attract affordable debt financing of operations and expansion of operations.
COVID-19 Pandemic has depressed demand for Oil. In December 2019, a novel strain of coronavirus was reported to have surfaced in Wuhan, China, which spread in China and is continuing to spread throughout the United States and other parts of the world. On January 30, 2020, the World Health Organization declared the outbreak of the coronavirus disease (COVID-19) a “Public Health Emergency of International Concern.” On January 31, 2020, U.S. Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the U.S. healthcare community in responding to COVID-19. On March 11, 2020, the World Health Organization characterized the outbreak as a “pandemic.” The significant outbreak of COVID-19 has resulted in a widespread health crisis that has adversely affected the economies and financial markets worldwide, has adversely affected the demand for oil and natural gas, has already adversely affected the realized prices for Barrister’s oil and gas, and Barrister’s business, results of operations and financial conditions, and may continue to do so in the future.
The ultimate extent of the impact of an epidemic, pandemic or other health crisis on demand for oil and natural gas and CoJax-Barrister’s business, financial condition and results of operations will depend on future developments, which are highly uncertain and cannot be predicted, including new information that may emerge concerning the severity of the epidemic, pandemic or other health crisis and actions taken to contain or prevent their further spread, among others. These and other potential impacts of an epidemic, pandemic or other health crisis, such as COVID-19, could, therefore, continue to materially and adversely affect demand for oil and natural gas and CoJax-Barrister’s business, financial condition, and results of operations.
Demand for oil has reached a 25 year low in May 2020. An economic recession caused by COVID-19 pandemic in the U.S. and other oil-consuming nations could become a depression. These uncertain economic conditions may prevent CoJax from expanding Barrister’s very limited drilling and production operations beyond a subsistence level in 2020 or even 2021. The prospect of CoJax-Barrister being unable to expand its oil drilling operations is a substantial risk to the viability of the companies in the future. Adverse economic and oil market conditions may also force the suspension of operations for extended periods.
Drilling for and producing crude oil are high-risk activities with many uncertainties that could adversely affect our business, financial condition, or results of operations. Oil and gas drilling and operating activities will be subject to
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many risks, including the risk that we will not discover commercially productive reservoirs or be able to produce oil profitably. Drilling for crude oil can be unprofitable, not only from dry holes but from productive wells that do not produce sufficient revenues to return a profit. CoJax-Barrister can be subject to civil liabilities from personal injury/wrongful death or pollution-related claims due to operations, and those liabilities may be more than CoJax-Barrister can pay or fund. Oil drilling and producing operations may be curtailed, delayed, or canceled as a result of other factors, including:
·unusual or unexpected geological formations and miscalculations;
·fires;
·explosions and blowouts;
·pipe or cement failures;
·environmental hazards, such as natural gas leaks, oil spills, pipeline, and tank ruptures, encountering naturally occurring radioactive materials, and unauthorized discharges of toxic gases, brine, well stimulation and completion fluids, or other pollutants into the surface and subsurface environment;
·loss of drilling fluid circulation;
·title problems for the properties on which we drill and resulting restrictions or termination of a lease for oil drilling and production operations;
·facility or equipment malfunctions;
·unexpected operational events, especially the need to drill significantly deeper than originally contemplated or finding, despite an engineering study to the contrary, that the drilling site is a dry hole that produces no appreciable amounts of crude oil or no crude oil;
·shortages of skilled personnel or unexpected loss of key drilling and production workers;
·shortages or delivery delays of equipment and services or of water used in hydraulic fracturing activities;
·compliance with environmental and other regulatory requirements and any unexpected remedial requirements for violations of environmental or other regulatory requirements;
·shareholder activism and activities by non-governmental organizations to restrict the exploration, development, and production of oil and natural gas so as to minimize emissions of greenhouse gases of “GHG’s”;
·oil reserve reports may be inaccurate, or drilling may not produce the level of oil estimated in oil reserve reports;
·natural disasters and the impact of pandemics like COVID-19 pandemic on demand for oil and market prices for oil; and
·adverse weather conditions, especially the possibility of an increased and more destructive hurricane and tropical storms hitting the Gulf States region due to Global Warming.
Any of these risks can cause substantial losses, including personal injury or loss of life, severe damage to or destruction of property, natural resources and equipment, pollution, environmental contamination, clean-up responsibilities, loss of wells, repairs to resume operations, and regulatory fines or penalties.
Losses and liabilities arising from uninsured or underinsured events could reduce CoJax-Barrister’s revenues or increase costs. There can be no assurance that any insurance CoJax or Barrister does obtain will be adequate to cover losses or liabilities associated with operational hazards and liabilities, especially litigation-related liabilities. CoJax and Barrister cannot predict the continued availability of insurance, or its availability at premium levels that justify its purchase.
From time to time, CoJax or Barrister may become a defendant in various litigation matters. The nature of CoJax-Barrister’s oil and gas operations exposes the companies to possible litigation claims, including litigation relating to climate change in the future. There is a risk that any matter in litigation could be adversely decided against CoJax or Barrister regardless of its belief, opinion, and position, which could have a material adverse effect on CoJax’s or Barrister’s financial condition and results of operations. Litigation is highly costly, and the costs associated with defending litigation could also have a material adverse effect on CoJax’s or Barrister’s financial condition.
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The Assumed Debt may hinder or prevent CoJax and Barrister from attracting needed funding or working capital from investors and lenders. By taking on the Assumed Debt, CoJax has limited revenues and substantial debt load. The Assumed Debt may severely hinder or prevent CoJax from obtaining affordable funding or financing to grow operations. It may force CoJax to seek to raise working capital by private placements of CoJax capital stock, which placements may substantially dilute existing CoJax shareholders and depress market price for CoJax Common Stock when and if it is public trading by presenting the risk of privately placed shares being sold into the public markets. If Assumed Debt cannot be managed, retired, or restructured, the Assumed Debt could pose a threat to the solvency and ongoing viability of Cojax-Barrister. CoJax-Barrister may incur additional indebtedness to fund operations or growth. Indebtedness can affect operations in several ways, including the following:
● | a significant portion of cash flows could be used to service indebtedness; |
● | a high level of debt would increase vulnerability to general adverse economic and industry conditions; |
● | any covenants contained in the agreements governing its outstanding indebtedness could limit the ability to borrow additional funds, dispose of assets, pay dividends and make certain investments; |
● | a high level of debt may place a company at a competitive disadvantage compared to its competitors that are less leveraged and, therefore, may be able to take advantage of opportunities that indebtedness may prevent pursuit; and |
● | debt covenants may affect flexibility in planning for, and reacting to, changes in the economy and in its industry. |
A high level of indebtedness increases the risk that CoJax-Barrister may default on debt obligations. We may not be able to generate sufficient cash flows to pay the principal or interest on its debt, and future working capital, borrowings or equity financing may not be available to pay or refinance such debt. If it does not have sufficient funds and is otherwise unable to arrange financing, CoJax-Barrister may have to sell significant assets or have a portion of its assets foreclosed upon which could have a material adverse effect on its business, financial condition and results of operations.
Any inability to engage or retain qualified operational personnel for new or existing drilling operations could substantially harm operations and future financial performance. While Barrister Members have extensive experience in oil and gas exploration and production, there is no assurance that they will be or continue to be actively involved in day-to-day operations, or will be able to recruit experienced personnel to operate Barrister. CoJax personnel lack the skills and experience to handle day-to-day oil and gas exploration and production operations, even at low oil production levels. Further, as a small oil and gas exploration and production operation, CoJax-Barrister may be unable to compete with larger, profitable, or better-funded competitors for qualified personnel to handle day-to-day exploration and production operations. Larger competitors, especially competitors with publicly traded stocks, can offer compensation and incentive compensation packages to qualified operations personnel that CoJax-Barrister cannot match.
The marketability of oil and gas production is dependent upon transportation and other facilities, certain of which we do not control. If these facilities are unavailable, our operations could be interrupted, and our revenues reduced. The marketability of oil and gas production will depend upon the availability, proximity, and capacity of transportation facilities owned by third parties. CoJax-Barrister oil production will be transported from the wellhead to gathering systems and distributed through facilities that are not under these companies’ control. If in the future, our combined companies are unable, for any sustained period, to implement acceptable delivery or transportation arrangements or encounter production related difficulties, CoJax-Barrister may be required to shut down or curtail oil production. Any such shutdown or curtailment, or an inability to obtain favorable terms for delivery of the oil produced, would materially and adversely affect CoJax-Barrister’s financial condition and results of operations.
CoJax-Barrister’s lack of industry and geographical diversification may increase the risks to its operations. Barrister operates in the oil and gas sector, and its leases are located in the State of Alabama. This lack of geographic diversification may make Barrister’s operations more sensitive to economic developments within a regional area, which may result in reduced rates of return or higher rates of default than might be incurred with a company that is more geographically diverse.
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Deficiencies of title to leased interests could significantly affect Barrister’s financial condition. Barrister often incurs the expense of a title examination prior to acquiring oil and natural gas leases or undivided interests in oil and natural gas leases or other developed rights. If an examination of the title history of a property reveals that an oil or natural gas lease or other developed rights have been purchased in error from a person who is not the owner of the mineral interest desired, Barrister’s interest would substantially decline in value or be eliminated. In such cases, the amount paid for the oil or natural gas lease or leases or other developed rights at issue may be lost, and the limited revenues of Barrister may also be eliminated.
CoJax-Barrister may not have adequate Insurance to cover all Losses. CoJax has only standard business liability insurance and no directors’ and officers’ liability insurance. The insurance of CoJax-Barrister may be insufficient to cover losses and risks and may not be available or not affordable. Additionally, we may elect not to obtain insurance if we believe that the cost of available insurance is excessive relative to the perceived risks presented. The occurrence of an event that is not covered in full or in part by insurance could have a material adverse impact on our business activities, financial condition and results of operations, including bankrupting the business. CoJax only has standard business liability and casualty insurance as of the date of this Form 8-K. CoJax will not pay for and cannot afford insurance covering drilling, production, and storage of oil and establishing oil rigs until it has sufficient cash or receives sufficient funding.
The potential lack of availability of, or cost of, drilling rigs, equipment, supplies, personnel, and crude oil field services could adversely affect CoJax-Barrister’s ability to execute on a timely basis exploration and development plans within any operating budget. When the prices of crude oil increase or the demand for equipment and services is greater than the supply in certain areas, our company could encounter an increase in the cost of securing drilling rigs, equipment, and supplies. Larger producers may be more likely to secure access to such equipment by offering more lucrative terms. If we are unable to acquire access to such resources or can obtain access only at higher prices, our ability to convert our reserves into cash flow could be delayed, and the cost of producing those reserves could increase significantly, which would adversely affect our results of operations and financial condition.
We are subject to environmental, health and safety laws and regulations and related compliance expenditures and liabilities. Oil and gas drilling and production operations are subject to numerous and significant federal, state, local and foreign laws and other requirements governing or relating to the environment. Our facilities could experience incidents, malfunctions, and other unplanned events, such as spills of hazardous materials that may result in personal injury, penalties, and property damage. In addition, certain environmental laws may result in liability, regardless of fault, concerning contamination at a range of properties, including properties currently leased or operated by us and properties where we disposed of or arranged for the disposal of, waste and other hazardous materials. As such, the operation of our facilities carries an inherent risk of environmental liabilities and may result in our involvement from time to time in administrative and judicial proceedings relating to such matters. While we will implement environmental management programs designed to improve environmental, health and safety performance continually, we cannot assure you that such liabilities including significant required capital expenditures, as well as the costs for complying with environmental laws and regulations, will not have a material adverse effect on our business, financial condition, results of operations and cash flows. Barrister acquired its operating assets in 2019, and there may be unknown environmental compliance issues or problems that will only arise in the future. There may be environmental liabilities from past non-compliance by prior owners of those operating assets that are not known by CoJax or Barrister and not evident until a future date. The extent of liability of Barrister or CoJax for past environmental liabilities, if any, can only be determined based on the facts and circumstances and date of any such non-compliance.
Oil prices are volatile. Once we commence oil production, any sustained decline in oil prices could adversely affect our business, financial condition, and results of operations and our ability to meet our capital expenditure obligations and financial commitments. The prices we receive for our oil production will heavily influence our revenue, profitability, access to capital, future rate of growth, and carrying value of our properties. Oil is a commodity, and its price may fluctuate widely in response to relatively minor changes in the supply of and demand for oil and market uncertainty. Lower commodity prices may reduce our cash flows and borrowing ability. If we are unable to obtain needed capital or financing on satisfactory terms, our ability to develop future reserves could be adversely affected. Also, using lower prices in estimating proved reserves may result in a reduction in proved reserve volumes due to economic limits. If we are required to curtail our drilling program, we may be unable to continue to hold leases that are scheduled to expire, which may further reduce our reserves. As a result, a substantial or extended decline in
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commodity prices may materially and adversely affect our future business, financial condition, results of operations, liquidity, and ability to finance planned capital expenditures.
Historically, oil market prices have been volatile and sensitive to bad economic or political news. In 2020, oil market price experienced historic drops in demand and volatility due to depressed worldwide demand for crude oil caused by travel restrictions imposed to combat COVID-19 pandemic and by production level disputes between Russia and Saudi Arabia OPEC members. The prices we receive for our oil production, and the levels of our oil production, depend on numerous factors beyond our control, which include the following:
·worldwide and regional economic conditions impacting the global supply and demand for oil;
·the price and quantity of foreign imports of oil and domestic competitors;
·political and economic conditions in or affecting other producing regions or countries, including the Middle East, Africa, South America, and Russia;
·actions of the Organization of the Petroleum Exporting Countries, its members and other state-controlled oil companies relating to oil price and production controls;
·the level of global exploration, development, and production;
·the level of global inventories;
·prevailing prices on local price indexes in the area in which we operate;
·the proximity, capacity, cost, and availability of gathering and transportation facilities;
·localized and global supply and demand fundamentals and transportation availability;
·the cost of exploring for, developing, producing and transporting reserves;
·weather conditions and other natural disasters;
·technological advances affecting energy consumption;
·the price and availability of alternative fuels;
·expectations about future commodity prices;
·the severity of impact and duration of COVID-19 pandemic on general economic activity and demand for oil;
·trade wars and political or military conflict between the U.S. and China and the resulting impact on world economy and economies of the U.S. and China; and
·U.S. federal, state and local and non-U.S. governmental regulation and taxes.
Conservation measures and technological advances could reduce demand for oil and natural gas. Fuel conservation measures, alternative fuel requirements, increasing consumer demand for alternatives to oil and natural gas, technological advances in fuel economy, and energy generation devices could reduce long term demand for oil. The impact of the changing demand for oil may have a material adverse effect on our business, financial condition, results of operations, and cash flows. Further, any aggressive initiative in the world or U.S. to replace carbon fuels with environmentally friendly alternatives could undermine our future business and oil industry in general. The prospects for natural gas under these circumstances may be more promising than crude oil due to natural gas being environmentally friendly. This risk factor is discussed in more detail below.
Climate change legislation and regulations restricting or regulating emissions of greenhouse gases (“GHGs”) could result in increased operating costs and reduced demand for the oil and natural gas while the potential physical effects of climate change could disrupt our production and cause us to incur significant costs in preparing for or responding to those effects. Climate change continues to attract considerable public and scientific attention. As a result, numerous proposals have been made. They are likely to continue to be made at the international, national, regional, and state levels of government to monitor and limit emissions of GHGs. While no comprehensive climate change legislation has been implemented at the federal level, the Environmental Protection Agency or “EPA” and states or groupings of states have pursued legal initiatives in recent years that seek to reduce GHG emissions through efforts that include consideration of cap-and-trade programs, carbon taxes, GHG reporting and tracking programs and regulations that directly limit GHG emissions from certain sources. In particular, the EPA has adopted rules under the authority of the U.S. Clean Air Act of “CAA” that, among other things, establish certain permit reviews for GHG emissions from certain large stationary sources, which reviews could require securing permits at covered facilities emitting GHGs and meeting defined technological standards for those GHG emissions. The EPA has also adopted rules requiring the monitoring and annual reporting of GHG emissions from certain petroleum and natural gas system sources in the United States, including, among others, onshore production.
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President Trump’s administration has rolled back, canceled, or sought to roll back or cancel numerous rules restricting GHGs in the energy industry. These efforts have been mostly challenged in court. The ultimate outcome of these federal legislative initiatives to control GHG and Trump Administration’s regulatory efforts to scale back environmental regulations remains uncertain and may hinge on the results of the November 2020 national elections.
In. the past two years, local governments have filed lawsuits to hold most major oil-producing companies liable for the impact of climate change on their localities. For instance, the State of Rhode Island sued several large oil producers in 2018 for claims based on climate change. These lawsuits have not yet resulted in judgments against oil producers, and courts have dismissed several of these lawsuits for lacking merit (since the sale of oil is lawful). Whether these lawsuits will create new liabilities for oil-producing companies is uncertain.
CoJax incurs significant costs as a result of operating as a fully reporting company, and its management is required to devote substantial time to compliance initiatives. CoJax incurs significant legal, accounting, and other expenses in connection with its status as a fully reporting public company. Specifically, it is required to prepare and file annual, quarterly and current reports, proxy statements, and other information with the SEC. Additionally, CoJax’s officers, directors, and significant stockholders are required to file Forms 3, 4, and 5 and Schedules 13D/Schedule 13G with the SEC disclosing their ownership of CoJax Common Stock and changes in such ownership. Furthermore, the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and rules subsequently implemented by the SEC have imposed various new requirements on public companies, including requiring changes in corporate governance practices. In addition, the Sarbanes-Oxley Act requires, among other things, that Cojax maintains effective internal controls for financial reporting and disclosure of controls and procedures. The costs and expenses of compliance with SEC rules and CoJax’s filing obligations with the SEC, or its identification of deficiencies in its internal controls over financial reporting that are deemed to be material weaknesses, could materially adversely affect CoJax’s results of operations or cause the market price of its stock to decline in value.
The quotation or listing of CoJax Common Stock on a Public Stock Market will impose additional costs on CoJax.
We also expect these rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance, and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. These factors also could make it more difficult for us to attract and retain qualified persons to serve on our board of directors, particularly to serve on our audit and compensation committees or as executive officers.
We may not be able to keep pace with technological developments in our industry. The oil industry is characterized by rapid and significant technological advancements and introductions of new products and services using new technologies. As others use or develop new technologies, we may be placed at a competitive disadvantage or may be forced by competitive pressures to implement those new technologies at substantial costs. In addition, other oil companies may have greater financial, technical, and personnel resources that allow them to enjoy technological advantages, and that may, in the future, allow them to implement new technologies before we can. We may not be able to respond to these competitive pressures or implement new technologies on a timely basis or at an acceptable cost. If one or more of the technologies we use now or in the future were to become obsolete, our business, financial condition or results of operations could be materially and adversely affected. We may be unable to license or acquire new technologies, and that failure could weaken our ability to compete in the oil production industry.
CoJax’s officers and directors have limited liability, and CoJax is required in certain instances to indemnify its officers and directors for breaches of their fiduciary duties. CoJax has adopted provisions in its Amended and Restated Articles of Incorporation, which limit the liability of its officers and directors and provide for indemnification by it its officers and directors to the fullest extent allowed under Virginia corporate law. CoJax’s Amended and Restated Articles of Incorporation generally provide that its officers and directors shall have no personal liability to it or its stockholders for monetary damages for breaches of their fiduciary duties as directors, except for breaches of their duties of loyalty, acts or omissions not in good faith or which involve intentional misconduct or knowing violation of the law, acts involving unlawful payment of dividends or unlawful stock purchases or redemptions, or any transaction from which a director derives an improper personal benefit. Such provisions substantially limit CoJax’s shareholder's ability to hold officers and directors liable for breaches of fiduciary duty and may require CoJax to indemnify its officers and directors.
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CoJax may be forced to write-down material portions of its assets if low oil prices continue. The recent COVID-19 pandemic has led to significantly low oil prices. A continued period of low prices may force CoJax to incur possible,write-downs of Barrister oil and natural gas interests, which could have a material effect on the value of its properties, and, when and if publicly traded, cause the value of CoJax Common Stock to decline in value.
If CoJax-Barrister increases oil production and such production may benefit from hedging practices, then if CoJax-Barrister does not hedge its exposure to reductions in oil and natural gas prices, it may be subject to significant reductions in prices. Alternatively, CoJax-Barrister may use oil price hedging contracts, which involve credit risk and may limit future revenues from price increases and result in significant fluctuations in its profitability. In the event that CoJax-Barrister has oil production levels where price hedging is an option. Then CoJax-Barrister chooses not to hedge any exposure to reductions in oil market prices by purchasing futures, and by using other hedging strategies, we may be subject to a significant reduction in prices, which could have a material negative impact on any profitability. Alternatively, CoJax-Barrister may elect to use hedging transactions with respect to a portion of its oil and natural gas production to achieve more predictable cash flow and to reduce its exposure to price fluctuations. While the use of hedging transactions limits the downside risk of price declines, their use also may limit future revenues from price increases. Hedging transactions also involve the risk that the counterparty may be unable to satisfy its obligations.
If oil production increases, then Barrister reserves and production will decline, which would adversely affect CoJax-Barrister’s business, financial condition, and results of operations unless replacement oil reserves are located or acquired. If oil production from Barrister’s oil properties increases, existing oil reserves will be depleted, and eventually, there will be a resulting decline in income and cash flow. Future growth and profitability will be, under those circumstances, highly dependent on Barrister’s success in economically finding or acquiring additional oil and natural gas properties. In the future, Barrister may have difficulty acquiring new oil properties. During periods of low oil and/or natural gas prices, it will become more difficult to raise the capital necessary to finance expansion activities. If Barrister is unable to replace its production, eventually, its oil reserves will decrease, and its business, financial condition and results of operations would be adversely affected.
The crude oil and natural gas reserves that Barrister reports are estimates and may prove to be inaccurate. There are numerous uncertainties inherent in estimating crude oil and natural gas reserves and their estimated values. The reserves Barrister reports now and in the future will only be estimated, and such estimates may prove to be inaccurate because of these uncertainties. Reservoir engineering is a subjective and inexact process of estimating underground accumulations of crude oil and natural gas that cannot be measured in an exact manner. Estimates of economically recoverable crude oil and natural gas reserves depend upon a number of variable factors, such as historical production from the area compared with production from other producing areas and assumptions concerning effects of regulations by governmental agencies, future crude oil and natural gas prices, future operating costs, severance and excise taxes, development costs and work-over and remedial costs. Some or all of these assumptions may, in fact, vary considerably from actual results. For these reasons, estimates of the economically recoverable quantities of crude oil and natural gas attributable to any particular group of properties, classifications of such reserves based on the risk of recovery, and estimates of the future net cash flows expected therefrom prepared by different engineers or by the same engineers but at different times may vary substantially. Accordingly, reserve estimates may be subject to downward or upward adjustment. Actual production, revenue, and expenditures with respect to Barrister’s reserves will likely vary from estimates, and such variances may be material.
Additionally, “probable” and “possible reserve estimates” are considered unproved reserves. As such, the SEC views such estimates to be inherently unreliable may be misunderstood or seen as misleading to investors that are not “experts” in the oil or natural gas industry. Unless you have such expertise, you should not place undue reliance on these estimates. Except as required by applicable law, CoJax-Barrister undertakes no duty to update this information and does not intend to update this information.
Risks related to CoJax Common Stock
No public market or no liquid public market may develop for our common stock. CoJax Common Stock is not authorized for trading or quotation on any national securities exchange or national quotation system. While we intend to seek approval for quotation of CoJax Common Stock on a “Public Stock Market” (as defined below), there is no guarantee that we will be approved for quotation of CoJax Common Stock on a Public Stock Market. Even if CoJax
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Common Stock is quoted on a national securities exchange or national quotation system, the lack of primary market makers may cause the public market for CoJax Common Stock to have limited liquidity, and investors may be unable to trade shares of common stock when desired and in desired numbers. If CoJax fails to obtain NASDAQ Capital Market quotation or listing on the New York Stock Exchange or New York Stock Exchange’s American Exchange (collectively, “Public Stock Market”) for its Common Stock within one year of the effective date of the Agreement, former Barrister Members can rescind the Exchange and assume control of Barrister – thus depriving CoJax of operations and revenues. There can be no assurance that CoJax will obtain approval for quotation or listing of its Common Stock, especially since the Public Stock Markets consider a number of factors in deciding on an application for quotation of stock, including economic viability of applicant. We may lack sufficient revenues to meet Public Stock Markets’ listing or quotation standards. If we obtain a quotation or listing on a Public Stock Market for the CoJax Common Stock, we may be unable to continue to satisfy the standards for the continued quotation of stock on the Public Stock Market.
The lack of a public market for the CoJax Common Stock means that the fair market value of CoJax Common Stock is uncertain. The uncertainty of the value of CoJax Common Stock will hinder efforts to raise working capital by offer and sale of shares of CoJax Common Stock or convertible securities or force CoJax to discount the offering price to attract investors heavily. Even with the acquisition of Barrister and the quotation of CoJax, Common Stock will not ensure any ability to attract equity investors due to the lack of a prior operating history of CoJax and the limited operating history of Barrister with control of the operating assets. CoJax-Barrister’s business and financial performance may be inadequate to attract equity investors.
If CoJax Common Stock is publicly traded, then the stock price may be volatile, and the value of any investment in CoJax Common Stock may decline. If the CoJax Common Stock publicly trades, then the trading price of that common stock is likely to be highly volatile and could be subject to wide fluctuations in response to various factors, many of which are beyond our control. In addition to the factors discussed in this "Risk Factors" section and elsewhere in this filing, these factors include:
·our operating performance and the operating performance of similar companies;
·failure to meet revenue, earnings, key metrics or other financial or operational expectations that we establish or are established by securities analysts or investors;
·the overall performance and volatility of the equity markets in general or our industry in particular;
·actual or anticipated developments in our business, our competitors' businesses or the competitive landscape generally;
·the number of shares of CoJax Common Stock publicly owned and available for trading;
·threatened or actual litigation;
·changes in laws or regulations affecting our business;
·changes in our board of directors or management;
·publication of research reports about us or our industry or changes in recommendations or withdrawal of research coverage by securities analysts, or the lack of such coverage for our common stock;
·public reaction to our press releases, other public announcements, and filings with the SEC, including related to new services or functionalities or announced or completed acquisitions;
·changes in accounting standards, policies, guidelines, interpretations or principles;
·any sales of shares of CoJax Common Stock by CoJax or CoJax existing stockholders; and
·the overall market price for crude oil;
·the extent of market support from broker-dealer, market makers, and institutional investors, which is lacking and will require considerable effort to establish. CoJax may be unable to establish market maker support that protects the CoJax Common Stock from being manipulated by day traders and others seeking to reap small profits from any increase in market price and from the market price reflecting the fair market value of CoJax-Barrister;
·general political and economic conditions; and
·duration and severity of the impact of COVID-19 pandemic on the market price of oil production companies and crude oil market prices.
General market and industry factors may seriously affect the market price of CoJax Common Stock when and if it publicly trades, and it has public investor shareholders, regardless of actual operating performance. Securities class
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action litigation has often been instituted against companies following periods of volatility in the market price of their securities. This form of litigation, if instituted against CoJax, could result in very substantial costs, divert our management's attention and resources and harm our business, operating results, and financial condition. CoJax may be unable to afford to defend against such litigation, and CoJax does not have directors and officers liability insurance.
We are an “emerging growth company,” and we cannot be certain if the reduced reporting requirements applicable to emerging growth companies will make our shares of common stock less attractive to investors. CoJax is an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012, or the “JOBS Act.” For as long as CoJax continues to be an emerging growth company, CoJax may take advantage of exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies, including not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in this Form 8-K, CoJax periodic reports and proxy statements under the Exchange Act and shareholder approval of any golden parachute payments not previously approved. CoJax can be an emerging growth company for up to five years, although circumstances could cause CoJax to lose that status earlier, including if the market value of CoJax shares of Common Stock held by non-affiliates exceeds $700 million or if CoJax has a total annual gross revenue of $1.0 billion or more during any fiscal year before that time, in which cases CoJax would no longer be an emerging growth company as of the following December 31, or if CoJax issues more than $1.0 billion in non-convertible debt during any three-year period before that time, in which case CoJax would no longer be an emerging growth company immediately. CoJax cannot predict if public investors will find CoJax shares of Common Stock less attractive because CoJax may rely on these exemptions. If some investors find CoJax shares of Common Stock less attractive as a result, there may be a less active trading market for CoJax shares of Common Stock, and the share price may be more volatile.
Under the JOBS Act, emerging growth companies also can delay adopting new or revised accounting standards until such time as those standards apply to private companies. CoJax has irrevocably elected not to avail itself of this exemption from new or revised accounting standards and, therefore, will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
If we start oil production operations through Barrister, if we fail to maintain an effective system of internal control over financial reporting, we may not be able to report our financial results or prevent fraud accurately. As a result, shareholders could lose confidence in our financial and other public reporting, which would harm our business and the trading price of CoJax Common Stock. Effective internal controls over financial reporting are necessary for us to provide reliable financial reports and, together with adequate disclosure controls and procedures, are designed to prevent fraud. If applicable to CoJax, any failure to implement required new or improved controls or difficulties encountered in their implementation could cause us to fail to meet our reporting obligations. Inferior internal controls could also cause investors to lose confidence in our reported financial information, which could have a negative effect when and if CoJax Common Stock publicly trades on the trading price of CoJax Common Stock.
Investors will experience dilution of their ownership interest due to the future issuance of additional shares of CoJax Common Stock. Since we believe that raising additional working capital will be necessary to fund any expansion of drilling operations, acquisition of new oil and gas exploration and production rights and leases, CoJax will be issuing more equity securities in the future to raise working capital as well as possibly issuing shares of CoJax capital stock in lieu of paying any cash compensation owed to CoJax management.
We are in a capital-intensive business, and we estimate that we will not have sufficient funds to finance the growth of our business, future acquisitions, or to support our projected capital expenditures. In the future, we may issue our previously authorized and unissued securities, resulting in the dilution of the ownership interests of purchasers of CoJax Common Stock offered hereby. Under our certificate of incorporation, CoJax is authorized to issue 300,000,000 shares of common stock and 50,000,000 shares of preferred serial stock with preferences and rights as determined by the CoJax Board of Directors. The potential issuance of additional shares of CoJax Common Stock or CoJax may also issue additional shares of CoJax Common Stock or other securities that are convertible into or exercisable for CoJax Common Stock in future public offerings or private placements for capital raising purposes or for other business purposes, potentially at an offering price, conversion price or exercise price that is below the trading price of CoJax Common Stock.
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After consummation of the Exchange, and public trading of CoJax Common Stock, the lack of Securities Industry Coverage of CoJax Common Stock, if any develops, could adversely impact its market value. If securities or industry analysts do not publish or cease publishing research or reports about CoJax or our business, or if they change their recommendations regarding CoJax Common Stock adversely, the stock price and trading volume of CoJax Common Stock could decline. The trading market for CoJax Common Stock will be influenced by the research and reports that industry or securities analysts may publish about Cojax-Barrister, our business, our product market, or our competitors. If any of the analysts who may cover us change their recommendation regarding CoJax Common Stock adversely, or provide more favorable relative recommendations about our competitors, the price of CoJax Common Stock would likely decline. If any analyst who may cover us were to cease coverage of our company or fail to publish reports on us regularly, Company could lose visibility in the financial markets, which in turn could cause the stock price or trading volume of CoJax Common Stock to decline. There is no securities industry coverage of CoJax or Barrister, and such coverage for a small independent oil producer like CoJax-Barrister is unlikely, especially in light of CoJax Common Stock not being listed or quoted on any public stock market and not trading.
If CoJax Common Stock is quoted on NASDAQ or New York Stock Exchange or NYSE American Exchange and trades and it does not trade above $5.00 or stays below $5.00 per share, then Financial Industry Regulatory Authority or “FINRA” sales practice requirements may limit a stockholder’s ability to buy and sell CoJax Common Stock. CoJax Common Stock is not listed or quoted on any public market, and the following only applies if CoJax Common Stock is publicly traded. Due to the lack of a public shareholder base, market makers, and a public float of shares of CoJax Common Stock, it is likely that CoJax Common Stock will not, when and if it is publicly traded, escape the application of the SEC “penny stock” rules. FINRA has adopted rules that relate to the application of the SEC’s “penny stock” rules (Exchange Act Section 15(h) and Exchange Act Rules 3a51-1 and 15g-1 through 15g-100) in trading CoJax securities and require that a broker/dealer have reasonable grounds for believing that the investment is suitable for that customer, prior to recommending the investment. Prior to recommending speculative, low priced securities to their non-institutional customers, broker/dealers must make reasonable efforts to obtain information about the customer’s financial status, tax status, investment objectives, and other information. Under interpretations of these rules, FINRA believes that there is a high probability that speculative, low priced securities will not be suitable for at least some customers. The FINRA requirements make it more difficult for broker/dealers to recommend that their customers buy our common stock, which may have the effect of reducing the level of trading activity and liquidity of our common stock.
Further, many brokers charge higher transactional fees for penny stock transactions. As a result, fewer broker/dealers may be willing to make a market in CoJax Common Stock, reducing a shareholder’s ability to resell shares of CoJax Common Stock and the willingness of broker-dealers to accept CoJax Common Stock for deposit in a trading account. Most broker-dealers will not accept “penny stocks” for deposit due to reporting burdens and liability exposure.
CoJax does not intend to pay cash dividends to shareholders. CoJax currently anticipates that it will retain all future earnings, if any, to finance the growth and development of its business. CoJax does not intend to pay cash dividends in the foreseeable future. Any payment of cash dividends will depend upon its financial condition, capital requirements, earnings, and other factors deemed relevant by its Board of Directors. As a result, only appreciation of the price of CoJax’s common stock, which may not occur, will provide a return to CoJax shareholders.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
We have limited revenues and oil production. We have limited revenues, and we cannot improve our business and financial condition without raising $2 Million to $3 Million to fund one 12,000-foot oil well for our existing oil interests. The drilling costs are currently in flux as the oil prices and available drilling rig number changes. Current revenues only support the maintenance of existing oil wells. We currently defer all of the compensation to the maintenance of the wells, outside legal counsel, and financial and accounting help. We deem 12,000 feet drilling depth as necessary to tap into the oil reserves.
The Oil production business is extremely competitive, locally, and nationally. We cannot match the oil production capacity, resources, and capabilities of most of our competitors, and this is so even if we obtain funding. The funding allows exploration but does not guarantee producing oil or producing oil on a profitable basis. We could fail even with the funding under this Offering.
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Our Business Focus. We intend to focus on finding and producing oil within the Barrister leases and will be dependent on that oil production from those drilling operations. We are focused on the area where our current independent engineering report indicates adequate possible oil reserves to support the cost of exploration. We will only explore other potential oil and gas fields outside if our efforts produce sufficient revenues and profits to support such additional exploration efforts.
Our plan of operation. Our plan of operation is to enter into agreements with various oi service companies, which are groups of experienced oil and gas exploration and production engineers, drill personnel, and oil and gas production managers to handle the set-up, drilling, production, storage and distribution of any oil production. We will enter into service agreements to provide the necessary experienced personnel and skills to handle all operational aspects of any drilling for oil if we receive adequate funding to commence drilling.
As of this date, we have no intention to or efforts to acquire additional oil interests or fields or to seek drilling and production of oil and gas in regions requiring hydraulic fracturing of shale formations, known as “fracking,” to produce oil and gas. Based on the geology, we anticipate a vertical drill to 12,000 feet or more without the use of fracking or similar technologies for forcing oil from shale formations or deep oil reserves. Nonetheless, fracking may be required in order to exploit some wells fully. Whether we engage in fracking will depend on our estimation of the cost of fracking, including possible environmental liabilities, versus the potential return on investment and expenses.
Ongoing concern. We project that we need at least $2 to $3 million to fund the setting up and operation of a 12,000 foot or more drilling rig. As of this date, we lack funding to commence any setup and drilling operations.
Financial statements required by this item will be filed by amendment not later than 71 calendar days after the date of this initial report on Form 8-K was filed with the Commission.
Security Ownership of Certain Beneficial Owners and Management. The management of Barrister and ownership of Barrister Membership Interests prior to the Exchange is set forth in Exhibit 99.1 to this Form 8-K.
The only issued and outstanding shares of CoJax capital stock is one (1) share of CoJax Common Stock issued to Jeffrey Guzy in the formation and organization of CoJax. No other CoJax securities have been issued. The ownership of CoJax Common Stock before and after the Exchange is set forth below:
Name of Common Stock Shareholder | Number of Shares of CoJax Common Stock owned prior to the Exchange | Percentage of ownership of issued and outstanding shares of CoJax Common Stock | Number of Shares of CoJax Common Stock owned after the Exchange | Percentage of issued and outstanding shares of CoJax Common Stock after the Exchange |
Jeffrey Guzy | 1 | 100% | 1 | Less than 1% |
Andrew S. Cardell | - | - | 182,500 | 5.00% |
Jeffrey Delancey | - | - | 304,045 | 8.33% |
Lamar Resources, LLC | - | - | 243,455 | 6.67% |
Roger McLeod | - | - | 2,920,000 | 80.00% |
* Less than one percent
(1) Andrew S. Cardell, Jeffrey Delancey, Lamar Resources, LLC, and Roger McLeod are Barrister Member.
(2) Jeffrey Delancey was Chief Executive Officer and a Director of CoJax from May 18, 2019, until January 21, 2020. Mr. Delancey voluntarily resigned to pursue other interests.
(3) Lamar Resources, LLC, is owned by Marty Rutland.
(4) Jeffrey Guzy is Chief Executive Officer and Director of CoJax. His ownership of CoJax Common Stock was obtained in the formation of CoJax.
Directors, Executive Officers, Promoters, and Control Persons. (1) Management of CoJax before and after Exchange. After the Exchange is consummated, Barrister will be managed by the same persons that managed Barrister prior to the consummation of the Exchange. There will also be no change in CoJax’s management under the Agreement. The CoJax officers and directors before and after the Exchange are:
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Name | Position(s) | Date of Appointment | Date of Resignation |
Jeffrey Guzy | Chief Executive Officer Director Chief Financial Officer | January 22, 2020 November 17, 2017 November 17, 2017 | - - March 16, 2020 |
Barrett Wellman | Chief Financial Officer | March 16, 2020 | - |
Jeffrey Delancey | Chief Executive Officer Director | May 18, 2018 May 18, 2018 | January 21, 2020 January 21, 2020
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Profiles of CoJax Officers and Director:
Jeffrey Guzy, Age 68, Chief Executive Officer and Director. Mr. Guzy has served as a director since May 15, 2018, and was appointed as Chief Executive Officer on January 22, 2020. On January 24, 2020, Mr. Guzy signed an employment agreement with the Company for his employment as Chief Executive Officer. He has served as a director of Leatt Corp. (OTC: LEAT), a public company, since April 2007. Mr. Guzy also served, from October 2007 to August 2010, as Leatt Corporation’s President. Mr. Guzy has served as an executive manager or consultant for business development, sales, customer service, and management in the telecommunications industry, specifically, with IBM Corp., Sprint International, Bell Atlantic Video Services, Loral CyberStar, and FaciliCom International. Mr. Guzy has also started his own telecommunications company providing Internet services in Western Africa. He serves as an independent director and chairman of the audit committee of Capstone Companies, Inc. (OTC.CAPC), a public corporation. Since 2020, he also serves as an independent director of Brownies Marine Group, Inc., (OTC.BWMG) a public company. Mr. Guzy has an MBA in Strategic Planning and Management from The Wharton School of the University of Pennsylvania, an M.S. in Systems Engineering from the University of Pennsylvania; a B.S. in Electrical Engineering from Penn State University; and a Certificate in Theology from Georgetown University.
William Barrett Wellman, Age 72 Chief Financial Officer. On March 16, 2020, the Company appointed William Barrett Wellman as Chief Financial Officer. Mr. Wellman has over 30 years of business experience as an accountant, controller, chief financial officer, chief information officer, and senior executive for various companies and two large accounting firms. Since 2006, Mr. Wellman has maintained a business and financial consulting business in Arlington, Virginia. The Company and Mr. Wellman’s consulting business share offices in Arlington, Virginia. He has an MBA from Marshall University in West Virginia and a B.S. in Accounting from the University of Charleston in West Virginia. Prior to Mr. Wellman’s appointment, Jeffrey Guzy handled the duties of Chief Financial Officer. Mr. Wellman has been a business associate of Mr. Guzy for over 20 years.
Executive Compensation. (1) CoJax Compensatory Arrangements. (1) Executive Compensation. The following table sets forth executive compensation for CoJax as of June 1, 2020:
Name and Principal Position | Year(1) | Salary(2) | Stock Options | Option Awards | Non-Equity Incentive Plan Compensation | All Other Compensation | Totals |
Jeffrey Guzy | 2020 YTD | $120,000 | - | - | - | - | $120,000- |
Chief Executive | 2019 | - | - | - | - | - | - |
Officer | 2018 | - | - | - | - | - | - |
Barrett Wellman | 2020 YTD | $100,000 | - | - | - | - | $100,000 |
(1) 2020 figures are for January 1, 2020, to June 1, 2020.
(2) Under their respective employment agreements: (a) Jeffrey Guzy has a base annual salary of $120,000, payable on a semi-monthly basis in equal installments, but the base salary is deferred until the Company has sufficient cash flow to pay the base salary. Further, the base salary can either be paid in total when Company is adequately funded, or the accrued unpaid base salary can be converted into shares of the CoJax Common Stock at the lower conversion price of the initial public offering price of $2.00 or current market price at the time of conversion by Mr. Guzy; and (b) Mr. Wellman’s base salary is $100,000, payable semi-monthly in equal installments, but the base salary is deferred until the Company has sufficient cash flow to pay the base salary. Alternatively, the accrued unpaid base salary can be converted into shares of the CoJax Common Stock at the lower conversion price of the initial public offering price of $2.00 or current market price at the time of conversion by Mr. Wellman.
Employment Agreement of Jeffrey Guzy. Mr. Guzy’s January 24, 2020 employment agreement with CoJax provides, in part, for:
(1) the term of the employment agreement is three years;
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(2) a base annual salary of $120,000 payable semi-monthly in equal installments, but the base salary is deferred ad only will be paid when Company is adequately funded, or the accrued unpaid base salary can be converted into shares of the CoJax Common Stock at the lower conversion price of the initial public offering price of $2.00 or current market price at the time of conversion by Mr. Guzy;
(3) Mr. Guzy is eligible for an ad hoc performance bonus if and in an amount approved by the disinterested directors when and if CoJax appoints disinterested directors;
(4) Mr. Guzy may participate in any incentive compensation and other benefit plans to the extent that he is eligible to do so;
(5) continuation of Mr. Guzy’s under Company’s health insurance and other benefit plans for 24 months after any termination of his employment for a good reason (as defined in the employment agreement);
(6) imposes confidentiality and non-recruitment of Company employees obligations on Mr. Guzy for one year after the end of employment;
(7) the employment agreement provides that the Company can terminate Mr. Guzy’s employment for cause (as defined in the employment agreement) and for Mr. Guzy to terminate the employment agreement for “good reason” (as defined in the employment agreement); and
(8) If Mr. Guzy terminates the employment for a good reason, then he would be entitled to: A cash payment, payable in equal installments over a six (6) month period after Mr. Guzy’s termination of employment, equal to the sum of the following:
-Base Annual Salary. Subject to the payment of the following sums subject to not causing the insolvency of the Company, the equivalent of the greater of (i) twenty-four (24) months of Mr. Guzy’s then-current base salary or (ii) the remainder of the term of the employment agreement (the "Severance Period"); plus
-Earned but Unpaid Amounts. Any previously earned but unpaid salary through Mr. Guzy’s final date of employment, Mr. Guzy’s termination of employment.
Further, the employment agreement also provides the following indemnification to Mr. Guzy: The Company shall indemnify and save harmless Mr. Guzy for any liability incurred by reason of any act or omission performed by Mr. Guzy while acting in good faith on behalf of the Company. Within the scope of the authority of his pursuant to the employment agreement and to the fullest extent provided under the Company Bylaws, the Company Articles of Incorporation and the Stock Corporation Act of Virginia, except that Mr. Guzy must have in good faith believed that such action was in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such conduct was unlawful. No indemnification barred by regulations or policies of the SEC or in clear violation of public policy will be permitted under the employment agreement.
The foregoing summary of the employment agreement is qualified in its entirety by reference to the employment agreement, as attached as Exhibit 10.1 to Company’s Current Report on Form 8-K, filed on January 27, 2020, with the Commission.
Employment Agreement for William Barrett Wellman. Mr. Wellman’s employment agreement, dated March 16, 2020, provides for:
The Company signed an employment agreement for Mr. Wellman's services as Chief Financial Officer on March 16, 2020. Under the employment agreement: (1) the term of the employment agreement is 3 years; (2) a base annual salary of $100,000 payable semi-annually in equal installments, but the base salary can either be paid in total when Company is adequately funded or, alternatively, the accrued unpaid base salary can be converted into shares of the CoJax Common Stockat the lower conversion price of the initial public offering price of $2.00 or current market price at time of conversion by Mr. Wellman; (3) Mr. Wellman is eligible for an ad hoc performance bonus if and in an amount approved by the disinterested directors; (4) Mr. Wellman may participate in any incentive compensation and other benefit plans to the extent that he is eligible to do so; (5) continuation of Mr. Wellman’s benefits under Company’s health insurance and other benefit plans for 24 months after any termination of his employment for good reason (as defined in the employment agreement); (6) imposes confidentiality and non-recruitment of Company employees obligations on Mr. Wellman for one year after end of employment, and (7) the employment agreement provides for the Company to terminate Mr. Wellman’s employment for cause (as defined in the employment agreement) and for Mr. Wellman to terminate the employment agreement for ”good reason” (as defined in the employment agreement).
Mr. Wellman’s unpaid base salary is deferred if unpaid at the time due.
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If Mr. Wellman terminates the employment for a good reason, then he would be entitled to: A cash payment, payable in equal installments over a six (6) month period after Mr. Wellman’s termination of employment, equal to the sum of the following:
-Base Annual Salary. Subject to the payment of the following sums subject to not causing the insolvency of the Company, the equivalent of the greater of (i) twenty-four (24) months of Mr. Wellman’s then-current base salary or (ii) the remainder of the term of the employment agreement (the "Severance Period"); plus
-Earned but Unpaid Amounts. Any previously earned but unpaid salary through Mr. Wellman’s final date of employment, Mr. Wellman’s termination of employment.
The employment agreement also provides the following indemnification to Mr. Wellman: The Company shall indemnify and save harmless Mr. Wellman for any liability incurred by reason of any act or omission performed by Mr. Wellman while acting in good faith on behalf of the Company. Within the scope of the authority of his pursuant to the employment agreement and to the fullest extent provided under the Company Bylaws, the Company Articles of Incorporation and the Stock Corporation Act of Virginia, except that Mr. Wellman must have in good faith believed that such action was in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such conduct was unlawful. No indemnification barred by regulations or policies of the Securities and Exchange Commission (“SEC”) or in clear violation of public policy will be permitted under the employment agreement.
The foregoing summary of the employment agreement is qualified in its entirety by reference to the employment agreement, as attached as Exhibit 10.1 to Company’s Current Report on Form 8-K, as filed on March 23, 2020.
(2) Barrister Executive Compensation. Barrister executive compensation is set forth in Exhibit 99.1 to this Form 8-K, which is incorporated herein by reference.
Market Price of and Dividends on Common Stock and Related Shareholder Matters. (1) CoJax Common Stock. CoJax Common Stock is not publicly traded. No other classes or series of CoJax capital stock has been issued. No dividends have ever been paid on CoJax Common Stock, and CoJax does not anticipate paying dividends on shares of CoJax Common Stock. Any cash available for dividend distributions will be applied to working capital needs.
(2) Barrister Membership Interests. Barrister Membership Interests are not publicly traded, and Barrister has no securities that are publicly traded. Barrister is a closely held private company.
(3) Possible Sale of Common Stock Pursuant to Rule 144. The only “restricted stock” (as defined in Rule 144 under the Securities Act) issued by CoJax as of the date of this Form 8-K was the November 17, 2017 issuance of one share of CoJax Common Stock to Jeffrey Guzy in the formation and organization of CoJax. CoJax believes that CoJax Shares issued in the Exchange would not be available for resale under Rule 144 until at least one year after consummation of the Exchange and the filing of this Form 8-K containing certain information required in an SEC Form 10 filing. As such, the timing of the availability of resale exemptions for CoJax Shares is not known with certainty, but the CoJax Shares are not available for resale under Rule 144 as of the date of this Form 8-K. When the CoJax Shares potentially become available for resale under Rule 144, there could be a depressive effect on any public market that may develop for CoJax Common Stock, given the amount of shares that would be available for resale under Rule 144.
(4) CoJax SEC Filings. CoJax is subject to the filing and reporting requirements under Section 15(d) of the Exchange Act and files period reports under SEC File Number 333-232845). The Company is current in its reporting requirements as of the date of the filing of this Form 8-K.
Description of CoJax Capital Stock. Authorized Capital Stock. CoJax’s authorized capital stock consists of 350,000,000 shares with 300,000,000 authorized shares of $0.01 par value Common Stock and 50,000,000 authorized shares of preferred serial stock (“preferred stock”).
Common Stock. As of June 16, 2020, there was one (1) share of CoJax Common Stock issued and outstanding, which share was beneficially owned by Jeffrey Guzy, CoJax’s Chief Executive Officer, and Director. The holder of CoJax Common Stock has equal ratable rights to dividends from funds legally available if and when declared by the CoJax Board of Directors and are entitled to share ratably in all of the assets available for distribution to holders of common
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stock upon liquidation, dissolution or winding up of our affairs. CoJax Common Stock does not provide the right to preemptive, subscription or conversion rights, and there are no redemption or sinking fund provisions or rights. CoJax Common Stock stockholders are entitled to one non-cumulative vote per share on all matters on which shareholders may vote on or are required to vote on.
No Cumulative Voting, Holders of shares of CoJax Common Stock do not have cumulative voting rights, which means that the holders of more than 50% of the outstanding shares, voting for the election of directors, can elect all of the directors to be elected, if they so choose, and, in that event, the holders of the remaining shares will not be able to elect any of our directors.
CoJax refers to the following Articles of Incorporation containing all the terms and conditions of its capital stock: its Articles of Restatement, as filed as Exhibit 3.1.1 to the Form S-1 Registration Statement (SEC File No. 333-232845), as filed with the SEC on July 26, 2019, and as amended by the Amended Articles of Incorporation, as filed as Exhibit 3.1 to the Form 8-K, filed with the Commission on January 27, 2020.
CoJax Preferred Stock. CoJax has a class of preferred serial stock which can be issued in series or classes with the specific designations, rights, preferences, and other terms and conditions specified by the CoJax Board of Directors at the time of authorization of the series or class. As of March 31, 2020, there were no shares of any series of preferred stock issued and outstanding, and none had been previously issued. The CoJax serial preferred stock allows the CoJax Board of Directors to determine:
(1) the designation of such class or series, the number of shares to constitute such class or y series and the stated value thereof;
(2) whether the shares of such class or series shall have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights, which (i) may be general or limited, and (ii) may permit more than one vote per share;
(3) the rate or rates (which may be fixed or variable) at which dividends, if any, are payable on such class or series, whether any such dividends shall be cumulative, and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, the preference or relation which such dividends shall bear to the dividends payable on any shares of stock of any other class or any other series of such class;
(4) whether the shares of such class or series shall be subject to redemption by the Corporation, and, if so, the times, prices and other conditions of such redemption;
(5) the amount or amounts payable upon shares of such class or series upon, and the rights of the holders of such class or series in, the voluntary or involuntary liquidation, dissolution or winding up, or upon any distribution of the assets, of the Corporation;
(6) whether the shares of such class or series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the shares of such series for retirement or other corporate purposes and the terms and provisions relative to the operation thereof;
(7) whether the shares of such series shall be convertible into, or exchangeable for, shares of stock of any class or any other series of such class or any other securities (including common stock) and, if so, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchange;
(8) the limitations and restrictions, if any, to be effective while any shares of such class or series are outstanding upon the payment of dividends or the making of other distributions on, and upon the purchase, redemption or other acquisition by CoJax of, the Common Stock or shares of stock of any other class or any other series of such class;
(9) the conditions or restrictions, if any, upon the creation of indebtedness of CoJax or the issue of any additional stock, including additional shares of such class or series or any other series of such class or any other class;
(10) the ranking (be it pari passu, junior or senior) of each class or series as to the payment of dividends, the distribution of assets and all other matters; and
(11) any other powers, preferences, and relative, participating, optional and other special rights, and any qualifications, limitations, and restrictions thereof, insofar they are not inconsistent with the provisions of these Articles of Incorporation, to the full extent permitted in accordance with the laws of the Commonwealth of Virginia.
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CoJax Series A Convertible Preferred Stock. CoJax authorized 500,000 shares of its Series A Convertible Preferred Stock, $0.01 par value (“Series A Stock”) on January 23, 2020, by an amendment to the Amended and Restated Articles of Incorporation. The shares of Series A Stock are entitled to one (1) vote per share on all matters submitted to a vote of stockholders but are not entitled to cumulate their votes in the election of directors. The holders of Series A Stock are not entitled to any dividends. In the event of liquidation or dissolution of CoJax, holders of shares of Series A Stock are entitled to share ratably in all assets remaining after payment of liabilities and have liquidation preference over the shares of Common Stock. Holders of Series A Stock have a right to convert each share of Series A Stock into ten (10) shares of Common Stock. The conversion is triggered without any action by a holder in the event of a merger or other business combination by CoJax, but not in the event of a recapitalization, subdivision, combination, reclassification, or exchange of shares of other classes or series of CoJax capital stock. No shares of Series A Stock are issued and outstanding as of the date of the filing of this Form 8-K.
Protective Provisions for Series A Stock. Under its Amended and Restated Articles of Incorporation, CoJax shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Amended and Restated Articles of Incorporation, as amended) the written consent or affirmative vote of the holders of at least a majority of the then outstanding shares of Series A Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately from the shares of Common Stock and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect: (i) alter or change the rights, preferences or privileges of the Series A Stock so as to materially and adversely affect such shares; (ii) amend the Amended and Restated Articles of Incorporation, as amended, or Bylaws of CoJax in a manner which materially and adversely affects the rights, preferences or privileges of the Series A Stock; or (iii) create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock or other securities unless the same ranks junior to or equal to the Series A Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of CoJax and the payment of dividends or other payments or distributions.
Virginia Anti-Takeover Statutes and Affiliated Transactions Statute. Virginia laws contain provisions governing affiliated transactions. In general, these provisions prohibit a Virginia corporation from engaging in affiliated transactions with any holder of more than 10 percent of any class of its outstanding voting shares, or an interested shareholder, for three years following the date that such person became an interested shareholder unless:
•a majority of (but not fewer than two) disinterested directors of the corporation and the holders of two-thirds of the voting shares, other than the shares beneficially owned by the interested shareholder, approve the affiliated transaction; or
•before, or on the date the person became an interested shareholder, a majority of disinterested directors approved the transaction that resulted in the shareholder becoming an interested shareholder.
Affiliated transactions subject to this approval requirement include mergers, share exchanges, material dispositions of corporate assets not in the ordinary course of business, any dissolution of the corporation proposed by or on behalf of an interested shareholder or any reclassification, including reverse stock splits, recapitalizations or mergers of the corporation with its subsidiaries, which increases the percentage of voting shares owned beneficially by an interested shareholder by more than five percent.
Virginia law permits a corporation to exempt itself from this statutory provision by placing a statement to that effect in its articles of incorporation. Our articles of incorporation do not specifically address the Virginia statute regarding affiliated transactions; therefore, we are subject to this provision.
Control Share Acquisitions Statute. Virginia law permits a corporation to exempt itself from this statutory provision by placing a statement to that effect in its articles of incorporation. This provision does not apply to CoJax as of the date of this Form 8-K because it has fewer than 300 shareholders. Further, CoJax adopted an amendment to its By-Laws to exempt CoJax from this statutory provision. This affiliated transaction provision does not apply where: The affiliated transaction is with (i) an interested shareholder who has been an interested shareholder continuously or who would have been such but for the unilateral action of the corporation since the latest of (a) January 26, 1988, (b) the date the corporation first became subject to this article by virtue of its having 300 shareholders of record, or (c) the date such person became an interested shareholder with the prior or contemporaneous approval of a majority of the
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disinterested directors, (ii) any person who becomes an interested shareholder as a result of acquiring shares from a person specified in (i) of this subdivision by gift, testamentary bequest or the laws of descent and distribution or in a transaction in which consideration was not exchanged and who continues thereafter to be an interested shareholder, or who would have so continued but for the unilateral action of the corporation, (iii) a person who became an interested shareholder inadvertently or as a result of the unilateral action of the corporation and who, as soon as practicable thereafter, divested beneficial ownership of sufficient shares so that such person ceased to be an interested shareholder, and who would not, at any time within the three-year period immediately preceding the announcement date have been an interested shareholder but for such inadvertency or the unilateral action of the corporation, or (iv) an interested shareholder whose acquisition of voting shares making such person an interested shareholder was approved by a majority of the disinterested directors prior to such shareholder’s determination date.
The Securities Enforcement and Penny Stock Reform Act of 1990. The SEC has also adopted rules that regulate broker-dealer practices in connection with transactions in penny stocks. Penny stocks are generally equity securities with a price of less than $5.00 (other than securities registered on certain national securities exchanges or quoted on the NASDAQ system, provided that the exchange or system provides current price and volume information with respect to transactions in such securities). Our shares of common stock may be deemed “penny stock.”
A purchaser is purchasing penny stock, which limits the ability to sell the stock. The shares offered by this prospectus constitute penny stock under the Exchange Act. The shares will remain penny stocks for the foreseeable future. The classification of penny stock makes it more difficult for a broker-dealer to sell the stock into a secondary market, which makes it more difficult for a purchaser to liquidate his/her investment. Any broker-dealer engaged by the purchaser for the purpose of selling his or her shares in us will be subject to Rules 15g-1 through 15g-10 of the Exchange Act. Rather than creating a need to comply with those rules, some broker-dealers will refuse to attempt to sell penny stock.
The penny stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from those rules, to deliver a standardized risk disclosure document prepared by the Commission, which:
•contains a description of the nature and level of risk in the market for penny stocks in both public offerings and secondary trading;
•contains a description of the broker’s or dealer’s duties to the customer and of the rights and remedies available to the customer with respect to a violation to such duties or other requirements of the Exchange Act;
•contains a brief, clear, narrative description of a dealer market, including “bid” and “ask” prices for penny stocks and the significance of the spread between the bid and ask price;
•contains a toll-free telephone number for inquiries on disciplinary actions;
•defines significant terms in the disclosure document or the conduct of trading penny stocks; and
•contains such other information and is in such form (including language, type, size, and format) as the SEC shall require by rule or regulation.
The broker-dealer also must provide, before effecting any transaction in a penny stock, to the customer:
•the bid and offer quotations for the penny stock;
•the compensation of the broker-dealer and its salesperson in the transaction;
•the number of shares to which such bid and ask prices apply, or other comparable information relating to the depth and liquidity of the market for such stock; and
•monthly account statements showing the market value of each penny stock held in the customer’s account.
The SEC penny stock rules require that prior to a transaction in a penny stock not otherwise exempt from those rules; the broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive the purchaser’s written acknowledgment of the receipt of a risk disclosure statement, a written agreement to transactions involving penny stocks, and a signed and dated copy of a written suitability statement. These disclosure requirements will have the effect of reducing the trading activity in the secondary market for our stock because it will be subject to these penny stock rules. Therefore, shareholders may have difficulty selling their securities.
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Legal Proceedings. (1) CoJax. There are no known legal proceedings against CoJax or its officer and director in their capacity as officers and directors of CoJax.
Legal proceedings for Barrister is described in Exhibit 99.1 to this Form 8-K report.
Indemnification of Officers and Directors. Indemnification of Barrister management is described in Exhibit 99.1 to this Form 8-K.
(1) CoJax. Contractual indemnification of CoJax officers under employment agreements is disclosed under “Executive Compensation” above.
(2) CoJax Indemnification under Virginia Laws and under Articles of Incorporation and By-Laws. The Virginia Stock Corporation Act under the Code of Virginia, 1950, as amended, and CoJax Amended and Restated Articles of Incorporation provide for indemnification of our directors and officers in a variety of circumstances, which may include liabilities under the Securities Act. Virginia law provides that, unless limited by its articles of incorporation, a corporation must indemnify a director or officer who entirely prevails in defense of any proceeding to which he was a party because he is or was a director or officer of the corporation against reasonable expenses incurred by him in connection with the proceeding. Virginia law permits a corporation to indemnify after a determination has been made that indemnification of the director is permissible in the circumstances because he has met the following standard of conduct, an individual made a party to a proceeding because he is or was a director against liability incurred in the proceeding if:
·he conducted himself in good faith;
·he believed in the case of conduct in his official capacity with the corporation that his conduct was in its best interests and in all other cases that his conduct was at least not opposed to its best interests; and
·in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A Virginia corporation may not indemnify a director in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him, unless in either case, a court orders indemnification and then only for expenses. In addition, the Virginia Stock Corporation Act permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of:
-a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the company; and
-a written undertaking by the director or on the director’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director is not entitled to indemnification and did not meet the relevant standard of conduct.
Virginia law permits a corporation to make any further indemnity, including indemnity with respect to a proceeding by or in the right of the corporation, and to make additional provision for advances and reimbursement of expenses, to any director or officer that may be authorized by the articles of incorporation or any bylaw made by the shareholders or any resolution adopted by the shareholders, except an indemnity against his willful misconduct or a knowing violation of the criminal law.
CoJax Amended and Restated Articles of Incorporation require indemnification of directors and officers with respect to certain liabilities, expenses, and other amounts imposed on them by reason of having been a director or officer, except in the case of willful misconduct or a knowing violation of criminal law. We do not carry insurance on behalf of directors, officers, employees, or agents, which may cover liabilities under the Securities Act.
(3) SEC Position on Indemnification. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act
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and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of ours in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.\
Item 3.02 Unregistered Sales of Equity Securities. Under the Exchange, CoJax will issue 7,500,000 shares of CoJax Common Stock to the Members of Barrister. The issuance of the shares is exempt under Section 4(a)(2) of the Securities Act of 1933, as amended, and Rule 506(b) of Regulation D under the Securities Act of 1933, as amended, (“Securities Act”). The Barrister Members have completed investor questionnaires attesting to their status as “accredited investors” under Rule 501(a) of Regulation D under the Securities Act.
Item 3.03 Material Modification to Rights of Security Holders. The Agreement does not modify the rights of CoJax Common Stock and no amendment of CoJax Amended and Restated Articles of Incorporation or By-Laws are required by the Agreement or the Exchange.
Rights of Barrister Members and its operating agreement are described in Exhibit 99.1 to this Form 8-K.
Item 5.01. Changes in Control of Registrant. Upon issuance of the Shares under the Exchange, voting control of CoJax will be held by the former Barrister Members as new shareholders of CoJax. Common Stock. Each share of CoJax Common Stock is entitled to one (1) vote on all matters presented or requiring shareholder approval. The following sets forth the ownership of CoJax Common Stock upon issuance of Shares in the Exchange:
Name of Person or Entity (1) | Ownership of Shares of CoJax Common Stock owned prior to Exchange | Shares of CoJax Common Stock Issued in Exchange | Ownership of Shares of CoJax Common Stock after consummation of Exchange | Percentage of Issued and Outstanding of CoJax Common Stock prior to Exchange | Percentage of Issued and Outstanding Shares of CoJax Common Stock after consummation of Exchange |
Andrew S. Cardell | - | 182,500 | 182,500 | 0% | 5.00% |
Jeffrey Delancey (2) | - | 304,045 | 304,045 | 0% | 8.33% |
Lamar Resources, LLC (3) | - | 243,455 | 243,455 | 0% | 6.67% |
Roger McLeod | - | 2,920,000 | 2,290,000 | 0% | 80.00% |
Jeffrey Guzy (4) | 1 | - | 1 | 100% | *0.00% |
* Less than one percent
(1) Andrew S. Cardell, Jeffrey Delancey, Lamar Resources, LLC, and Roger McLeod are Barrister Member.
(2) Jeffrey Delancey was Chief Executive Officer and a Director of CoJax from May 18, 2019, until January 21, 2020. Mr. Delancey voluntarily resigned to pursue other interests.
(3) Lamar Resources, LLC, is owned by Marty Rutland.
(4) Jeffrey Guzy is Chief Executive Officer and Director of CoJax. His ownership of CoJax Common Stock was obtained in the formation of CoJax.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers. Upon the consummation of the Exchange, Jeffrey Guzy will remain as the sole director of CoJax Board of Directors and as Chief Executive Officer of CoJax; and Barrett Wellman will continue as Chief Financial Officer of CoJax. No new CoJax officers or directors will be appointed under the Agreement. However, Barrister Members will receive voting control of CoJax upon consummation of Exchange and will be able to elect CoJax directors in the future. There is no provision in the Agreement for a change in CoJax Board of Directors, and CoJax is not aware of any agreement to effect a change in the CoJax Board of Directors.
Barrister will continue to be managed by its management and members before the Exchange. See Exhibit 99.1 to this Form 8-K for information about Barrister’s management. See Exhibit 99.1 to this Form 8-K for discussion of Barrister’s management and their compensation arrangements.
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Item 5.06 Change In Shell Company Status. CoJax was formed with the sole and express purpose of acquiring crude oil and gas production assets or operations. Before acquiring Barrister, CoJax had no revenue-generating activities and no operating assets. Upon acquisition of Barrister, CoJax will have crude oil production assets detailed in Exhibit 99.1 to this Form 8-K and the financial statements attached to this Form 8-K. CoJax does not deem itself to be a “shell company” under SEC rules due to CoJax’s formation for a specific business purpose.
Item 5.07 Submission of Matters to a Vote of Security Holders. CoJax’s sole Common Stock shareholder and sole director, being Jeffrey Guzy, approved the Agreement and Exchange in a special combined shareholder and board of directors meeting on June 13, 2020. Barrister Members approved the Agreement and Exchange in a meeting of Members held on May 14, 2020.
Item 8.01 Other Events. Form 10 Information. Additional information required under this Current Report on Form 8-K about CoJax, Barrister, and the Exchange and Agreement is filed as Exhibit 99.1 and is incorporated into this Item 8.01 by reference. The information set forth in Exhibit 99.1 to the Current Report on Form 8-K is intended to be “Form 10 information” necessary to satisfy the conditions contained in Rule 144(i)(2) under the Securities Act of 1933, as amended.
Item 9.01. Financial Statements and Exhibits.
Financial statements required by this item will be filed by amendment not later than 71 calendar days after the date of this initial report on Form 8-K was filed with the Commission.
Exhibit No.Description
2.1Acquisition Agreement, dated June 16, 2020, by and among CoJax Oil and Gas Corporation, Barrister Energy, LLC, and all of the Members of Barrister Energy, LLC.
2.2Purchase and Sale Agreement between Barrister Energy, LLC, and Central Operating, LLC, dated June 1, 2019.
2.3Promissory Note, dated June 1, 2019, issued by Barrister Energy, LLC under the Purchase and Sale Agreement, dated June 1, 2019, with Central Operating, LLC
2.4Assignment and Assumption of Promissory Note, dated June 16, 2020, by CoJax Oil and Gas Corporation and Barrister Energy, LLC, for assignment of debts under Acquisition Agreement, dated June 16, 2020, by CoJax Oil and Gas Corporation and Barrister Energy, LLC
3.1Articles of Incorporation of CoJax Oil and Gas Corporation (1)
3.1.1Amended and Restated Articles of Incorporation of CoJax Oil and Gas Corporation (2)
3.1.1.1Amended Articles of Incorporation of CoJax Oil and Gas Corporation (3)
3.1.1.1.1Amended Articles of Incorporation of CoJax Oil and Gas Corporation (4)
3.1.2Articles of Organization of Barrister Energy, LLC
3.2By-Laws of CoJax Oil and Gas Corporation (3)
3.2.1Second Amended Operating Agreement of Barrister Energy, LLC
3.2.2Revised Second Amended Operating Agreement of Barrister Energy, LLC
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4.1Form of Stock Certificate of CoJax Oil and Gas Corporation Common Stock, $0.01 par value
10.1Employment Agreement by Jeffrey Guzy and CoJax Oil and Gas Corporation, dated January 22, 2020 (5)
10.2Employment Agreement by William Barrett Wellman and CoJax Oil and Gas Corporation, dated March 23, 2020 (6)
23.1Consent of Independent Petroleum Engineers
23.2Consent of Independent Audit Firm (7)
99.1.1Barrister Energy, LLC Form 10 Information
99.1.2Barrister Energy, LLC Oil Leases
99.1.3Barrister Central Certified SEC Reserve Report
Footnotes: Following exhibits are incorporated by reference herein from:
(1)Filed as Exhibit 3.1 to the Form S-1 Registration Statement (SEC File #333-232845), dated and filed with the Commission on July 26, 2019.
(2)Filed as Exhibit 3.1.1 to the Form S-1 Registration Statement (SEC File #333-232845), dated and filed with the Commission on July 26, 2019.
(3)Filed as Exhibit 3.1 to the Form 8-K filed by CoJax Oil and Gas Corporation with the Commission on February 3, 2020.
(4)Filed as Exhibit 3.1 to the Form 8-K by CoJax Oil and Gas Corporation, as filed with the Commission on June 15, 2020
(5)Filed as Exhibit 10.1 to the Form 8-K by CoJax Oil and Gas Corporation, as filed with the Commission on January 22, 2020
(6)Filed as Exhibit 10.1 to the Form 8-K by CoJax Oil and Gas Corporation, as filed with the Commission on March 23, 2020
(7)Consent of the Independent Audit Firm along with Financial statements required by this item will be filed by amendment not later than 71 calendar days after the date of this initial report on Form 8-K was filed with the Commission.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
COJAX OIL AND GAS CORPORATION
By: /s/ Jeffrey Guzy
Jeffrey Guzy, Chief Executive Officer
Date: June 20, 2020
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ACQUISITION AGREEMENT
Dated as of June 16th, 2020
By and Among
COJAX OIL AND GAS CORPORATION
and
BARRISTER ENERGY, LLC
CONFIDENTIAL
The information contained herein is confidential and is intended only for the person or entity to which it is issued. This information may not be reproduced, distributed, or used for any other purpose without the express written consent of CoJax Oil and Gas Corporation and must be returned upon demand.
Exhibit 2.1 Acquisition Agreement
This ACQUISITION AGREEMENT (“Agreement”) is entered into this 16th day of June 2020 (the "Effective Date") by CoJax Oil and Gas Corporation, a Virginia corporation (hereinafter referred to as the "Buyer") and Barrister Energy, LLC, a Mississippi Limited Liability Company (the “LLC”) and the Members of the LLC listed in Exhibit A hereto (hereinafter referred to individually as the “Seller” and collectively as the "Sellers"). Buyer, Sellers, and LLC may also be referred to individually as a “party” and collectively as the “parties.”
BACKGROUND:
WHEREAS, each of the governing authorities and holders of outstanding voting equity securities of Buyer and LLC have approved this Agreement and the transactions contemplated hereby; and
WHEREAS, Buyer is purchasing from Sellers one hundred percent (100%) of the Sellers’ LLC membership interests, being all of the outstanding LLC membership interests.
NOW, THEREFORE, in consideration of the respective representations, warranties, covenants, agreements, and conditions contained herein, the sufficiency of the consideration being acknowledged by the parties, the parties agree:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms mean:
"Affiliate" of any party or person means any person directly or indirectly controlling, controlled by or under common control with that party or person. For the purposes of this definition, "Control" when used with respect to any party or person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms "Controlling" and "Controlled" have meanings correlative to the foregoing.
"Business day" means a weekday on which commercial banks in Hattiesburg, Mississippi, are open for business for more than six hours.
"Closing" means the sale, assignment, and transfer of all (100%) of the outstanding Membership Interests of the LLC owned by the Sellers to Buyer for the consideration described below and consummation of all actions to effect that sale, assignment, and transfer of Sellers’ LLC Membership Interests hereunder. “Exchange” means the exchange of “Payment Shares” (as defined below) for all (100%) of the Sellers’ LLC Membership Interests.
“Debt” means the debt obligations of LLC, as described in Schedule One hereto.
”Intellectual property right" means any patent, patent right, trademark, trademark right, trade name, trade name right, service mark, service mark right, logo, copyright, and other proprietary intellectual property right and all applications thereto.
“IPO” means initial public offering made by a Form S-1 Registration statement filed with the U.S. Securities and Exchange Commission (SEC File Number 333-232845), declared effective on August 12, 2019, and registering 3 million shares of Common Stock. These registered shares are not available for issuance under this Agreement or in the Exchange.
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ACQUISITION AGREEMENT
"Knowledge" of the Buyer, Members, or Seller, as the case may be, shall mean the personal and actual knowledge of Jeffrey Guzy for the Buyer, Managing Member for the LLC, and each individual Seller – in each case without independent verification or investigation.
“LLC Membership Interests” means all (100%) of the Membership Interests owned by the Sellers in the LLC (as described in Exhibit One hereto). The term “LLC Membership Interests” includes in its meaning all economic, voting, and management participation rights of each Seller in the LLC.
"Material adverse effect" means, (A) with respect to the Buyer, a material adverse effect on the condition (financial or otherwise), business, assets or results of operations or prospects of the Buyer, except any such effect, resulting from or arising in connection with (i) this Agreement or the transactions contemplated hereby or the announcement hereof, (ii) changes, circumstances or conditions (including changes in applicable laws, rules, and regulations) affecting the oil and gas exploration industry in general, or (iii) changes in general economic conditions or financial markets, and (B) with respect to Sellers or LLC, as the case may be, a material impairment of the ability of any Seller to perform its, his or her obligations, or the LLC to perform its obligations, as the case may be, under this Agreement or to consummate the transactions contemplated by this Agreement and in accordance with Agreement’s terms and conditions. “Material” means any impact, effect, or result deemed important by a reasonable person in making an investment decision about the securities of a company or a transaction in the securities of a company.
“Person” means an individual, group, corporation, partnership, limited partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. “Third Party” is a person who is not a named and signatory party to this Agreement.
“Prohibited action” means an act or omission that is not in the ordinary course of business and would be regarded by a reasonable businessman as clearly detrimental to the best interests of, or materially adverse to the best interests of a company, including its business operation or financial condition.
"SEC" means the U.S. Securities and Exchange Commission.
"Subsidiary" means, with respect to any person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such person.
"1933 Act" means the Securities Act of 1933.
"1934 Act" means the Securities Exchange Act of 1934.
Any reference in this Agreement to a statute shall be to such statute, as amended from time to time, and to the rules and regulations promulgated thereunder. The plural and possessive versions of a defined term are included in the definition of that defined term.
ARTICLE 2: PURCHASE OF MEMBERSHIP INTERESTS
Section 2.01. Purchase of Membership Interests. (a) Buyer will purchase and accept from each of the Sellers, and each of the Sellers will sell, transfer and assign to Buyer at the Closing all of the Sellers’ rights, claims,
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ACQUISITION AGREEMENT
interests and title to all of their respective Membership Interests, including all economic and voting rights, in the LLC for the consideration set forth in Exhibit A hereto, which consideration consists in the aggregate of 3,650,000 shares of Common Stock of Buyer (“Payment Shares”), and the assumption of $2,700,000 principal amount of Debt by Buyer. Each Member’s allocation of the Payment Shares in exchange for that Member’s Membership Interests in the LLC is set forth in Exhibit A hereto. Each party will provide the deliverables described in Exhibit A hereto as being that party’s obligation to the other party or parties (“Deliverables”), and the tender or waiver of tender of each of the Deliverables being required to consummate the Closing. Debt will not be an obligation of and will not be assumed or guaranteed by any officer, director, or shareholder of Buyer.
(b) Closing Date. The Closing will occur at 5:00 p.m., Eastern Standard Time, on a weekday within Fifteen (15) days after the date on which: (i) the audit conducted by Buyer’s auditor of the transactions contemplated under this Agreement and the parties is completed and (ii) the audited financial statements and footnotes, along with the auditor’s opinion letter, (collectively, the “Audit Report”) are delivered to the Buyer; (iii) other parties have received the Audit Report; (iv) Sellers and LLC have taken all actions under the LLC Operating Agreement and laws of Mississippi to allow the sale, transfer, and assignment of all of the Sellers’ Membership Interests in the LLC; (v) satisfaction of any change of control requirements for the instruments and agreements evidencing any portion of the Debt; and (vi) parties have complied with any regulatory filing or governmental consent requirements for the effectiveness under applicable federal and state laws and regulations for the Exchange. The date on which the Closing occurs is the “Closing Date” and the “Closing Deadline” is the fifteenth (15th) day after the date on which the events described in Subsection 2.01(b)(i), (ii) and (iii) above are completed.
(c) The Payment Shares are “restricted securities” under Rule 144 of the 1933 Act and under state securities laws and regulations. Each of the Sellers will not sell, transfer, assign, pledge, hypothecate or otherwise dispose of any of the Payment Shares in any manner which would violate any federal or applicable state securities laws or regulations (“Securities Laws”) or eliminate the availability to the Buyer of its exemption from registration requirements, which exemption is specified by the provisions of the Securities Laws and is relied upon by Buyer for issuance of Payment Shares in the Exchange. Each of the Sellers also agrees and acknowledges, and each Seller represents to the Buyer:
(i) The Seller is aware that the Payment Shares are restricted securities and cannot be sold, pledged, hypothecated, or otherwise disposed of, unless in compliance with the provisions of Securities Laws (by registration thereunder or exemption from registration thereunder) and do not enjoy any registration rights.
(ii) A legend in substantially the following form has been or will be placed on any certificate(s) representing and evidencing the Payment Shares, including any replacement stock certificates:
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THESE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE, PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OR OTHER JURISDICTIONS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, SUCH SECURITIES MAY ONLY BE TRANSFERRED IF THE TRANSFER AGENT FOR SUCH SECURITIES HAS RECEIVED DOCUMENTATION SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT.”
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ACQUISITION AGREEMENT
(d) Buyer is entitled to issue a stop transfer order and instructions to the transfer agent of the Buyer with respect to, and transfer agent is entitled to rely on the Buyer’s order and instructions in respect of, any of the Payment Shares in order to restrict the sale, transfer, pledge, hypothecation or other disposition of those Payment Shares in any transaction in violation of the Securities Laws or this Agreement (as determined by Buyer in its sole but reasonable discretion).
Section 2.02. Buyer Disclosure Documents. The Buyer agrees that each document required to be filed by the Buyer with the SEC or required to be distributed or otherwise disseminated by the Buyer to the Buyer's stockholders in connection with the transactions contemplated by this Agreement (the "Buyer Disclosure Documents"), and any amendments or supplements thereto when filed, distributed or disseminated, as applicable, will comply as to form in all material respects with the applicable requirements of the 1934 Act or 1933 Act and all applicable regulations thereunder, as the case may be.
Section 2.03. Seller Disclosure Documents. Each of the Sellers agrees, and the LLC agrees that the information that it, he or she furnishes to the Buyer in writing specifically for use in any Buyer Disclosure Document will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading at the time of the filing of such Buyer Disclosure Document or any supplement or amendment thereto, at the time of any distribution or dissemination thereof and at the time of the consummation of the Exchange.
Section 2.04. Rescission Right. (a) Sellers’ Rescission Right. During the period from the Closing Date until July 1st, 2021 (“Rescission Period”), the Sellers will be entitled as a group, but not individually, to rescind the exchange of Seller’s Membership Interests for Payment Shares (the “Rescission”) upon satisfaction of any of the following conditions: (i) occurrence of any of the triggering events in Section 2.04(b) (“Sellers Triggering Event”) and (ii) full compliance with the requirements of Section 2.06 below. All Sellers must consent to rescission under this Section 2.04 to exercise and effect the rescission right under this Section 2.04.
(b) The Sellers Triggering Events are: (i) prior to the expiration of the Rescission Period, Buyer files a petition for protection from creditors under any chapter of the U.S. Bankruptcy Code and that petition is not withdrawn within sixty (60) days, or Buyer is declared insolvent by a court of competent jurisdiction, or Buyer’s Board of Directors approves a plan of complete liquidation; or (ii) if Buyer has not been issued a trading symbol for its Common Stock by Financial Industry Regulatory Authority or “FINRA” within Ninety (90) days of the consummation of the Closing; or (iii) if Buyer’s Common Stock has not been listed on: the New York Stock Exchange or NYSE American Exchange; or quoted on NASDAQ Capital Markets; or to be quoted or listed on any successor market to the foregoing, by the first annual anniversary of the Effective Date.
2.05 Buyer Rescission Right. (a) Buyer will have the right to rescind the issuance of the Payment Shares upon: (i) the occurrence of any of the events in Section 2.05(b) below prior to the expiration of the Rescission Period, (“Buyer Triggering Event”) and (ii) Buyer’s compliance with Section 2.06 below and full compliance with the applicable Securities Laws.
(b) The Buyer Triggering Events are: (i) prior to the expiration of the Rescission Period, a Seller files a petition for protection from creditors under any chapter of the U.S. Bankruptcy Code and that petition is not withdrawn within sixty (60); or (ii) prior to the expiration of the Rescission Period, a receiver or other liquidating officer is appointed for substantially all of the assets or business of a Seller, or if a Seller makes an assignment for the benefit of creditors of all or substantially all of Seller’s operating assets; or (iii) if the LLC Membership Interests acquired by the Buyer at the Closing in the Exchange do not represent one hundred percent (100%) of the then issued and outstanding LLC Membership Interests, and all economic and voting rights thereto, as of the Closing.
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(c) Assignment of Debt. In the event that the Sellers timely rescind the Exchange in accordance with this Agreement, then the LLC agrees to assume the unpaid amount of the Debt concurrently with the consummation of Rescission. Upon the occurrence of the Rescission, LLC will sign all required agreements, documents and instruments to assume all liability and responsibility for payment of the principal and interest thereon of the balance of the Debt (as determined on the date of the assumption of the Debt hereunder). The signing of the Debt assumption agreements, documents, and instruments will occur concurrently with the Rescission process in Section 2.06 below. Buyer can enforce this Section 2.05(c) by injunctive relief without posting bond, proof of damages, or compliance with arbitration provisions of Section 2.08 below. In the event of an assumption of the Debt by LLC, Buyer will prepare the required agreements, documents, and instruments at Buyer’s expense. Those agreements, documents, and instruments will be commercially reasonable in their terms and conditions.
2.06 Procedure for Rescission. If a Seller Triggering Event occurs or a Buyer Triggering Event occurs, as the case may be, and the Sellers elect to rescind the Exchange or the Buyer elects to rescind the Exchange, as the case may be, and all conditions precedent in Section 2.04 or Section 2.05, as the case may be, above have been satisfied, then the parties agree they must comply with the following procedure to consummate a rescission of the Exchange: (i) each Seller will tender all of his, her or its Payment Shares to the Buyer; (ii) within five (5) days after the date on which the Sellers have tendered all of the Sellers’ Payment Shares to the Buyer, the LLC will issue LLC Membership Interests to each Seller representing the percentage ownership of the LLC Membership Interests that the Seller exchanged for his, her or its Payment Shares (“Pre-Closing Interests”); (iii) within five (5) days after receiving all of the Payment Shares from the Sellers, the Buyer will tender all of the Membership Interests of the LLC received by the Buyer under this Agreement in the Exchange, representing one hundred percentage (100%) of all Membership Interests of the LLC, to the LLC for cancellation by the LLC; (iv) all Buyer appointed or elected Managers, directors and officers of the LLC will resign upon receipt of a written notice from Buyer of the consummation of the actions in Section 2.06(i), (ii) and (iii), each resignation being effective on the date of receipt of the Buyer’s written notice. The Buyer’s written notice will be sent to the Buyer appointees or elected Managers, directors and officers of the LLC within five (5) days after Buyer has received all of the Payment Shares from the Sellers; and (v) parties will cooperate fully, diligently and in good faith to take all actions and sign all agreements, filings, reports, affidavits, forms, certificates and other documents that are reasonably necessary to rescind the issuance of Payment Shares and rescind the Exchange, to terminate all interests, claims, and rights of the Buyer in or to the LLC and its assets as well as terminate all interests, rights, and claims of the Seller and the LLC in or to the Buyer and the Payment Shares, including compliance with applicable Securities Laws. Buyer will prepare the agreements, documents, and instruments for the consummation of any Rescission and do so at Buyer’s expense.
2.07. SEC Filings. Buyer will timely file a Form 8-K and any other required filings, exhibits, amendments to SEC filings, and information with the SEC to report the rescission of the issuance of the Payment Shares and Exchange and the termination of all interests, rights, and claims to the LLC. While the Buyer will endeavor to allow the LLC and Sellers to review the proposed disclosures in the Form 8-K or other SEC filings, the parties agree and acknowledge that the Buyer has a legal obligation to timely report or disclose material developments to the SEC in public filings and that this disclosure obligation will not be barred or delayed under any circumstances by the LLC or any Sellers or their review of proposed SEC filings by Buyer, whether acting separately or jointly. Further, the Buyer has no obligation to amend the text of its public disclosures in SEC filings as requested or demanded by the LLC or any Sellers. LLC and Sellers will fully and timely cooperate with the Buyer in verifying disclosures in any Buyer SEC filings about this Agreement and any rescission of the Exchange. Each party will pay and be responsible for its or his or her respective costs for cooperation in the verification of disclosures in Buyer SEC filings. The parties agree and acknowledge that the Sellers and LLC are not liable to Buyer for disclosures in Buyer SEC filings absent a certification of representation by a Seller or LLC to the contrary.
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2.08. Arbitration. Unless required otherwise by applicable federal or state laws and regulations, or unless expressly stated otherwise in this Agreement, including the exclusion in Section 2.05(c) above for LLC assuming the Debt from Buyer, any dispute, claim, cause of action or controversy arising out of or relating to or based on the rescission of the Exchange and related provisions of this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by mandatory arbitration in Jackson, Mississippi before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the JAMS Arbitration Award or “Award” may be entered in and enforced by any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties agree to appointment or emergency arbitrator for any requested emergency relief. Each party shall communicate its choice of a party-appointed arbitrator only to the JAMS Case Manager in charge of the arbitration. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Mississippi, exclusive of conflict or choice of law rules. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
2.09. Definitions. For purposes of this Section 2.09, the following terms mean: (A) “Damages” means any damage, loss, liability, Tax, royalty, claim, judgment, award, assessment, settlement, disbursement, deficiency, fine, penalty, cost or expense of any nature whatsoever (including any costs of investigation and any defense and reasonable attorneys’, consultants’ and experts’ fees and expenses), but excluding speculative, punitive and incidental damages and claims for loss of future profit, appreciation, business opportunity or tax advantage; (B) “Pre-Closing Tax Period” means the period from the beginning on January 1, 2020 and ending on the Closing Date; (C) “Proceeding” means any lawsuit, other litigation, notice of violation, notice, demand, action, cause of action, enforcement action, proceeding, hearing, arbitration, mediation, citation, indictment, summons, subpoena, audit or investigation or inquiry of any nature (in each case, whether civil, criminal, administrative, regulatory, investigative or informal, and whether at law or in equity, commenced, conducted, heard or pending by or before any governmental authority or mediator; (D) “Pro Rata Share” means, with respect to each Seller, the proportion of Payment Shares owned by such Seller relative to Payment Shares owned by all Sellers in the aggregate; (E) “Tax” means any federal, state, county, municipal, local, foreign or other tax, duty, fee, excise, premium, impost, levy, assessment, tariff or other charge of any kind whatsoever imposed, assessed or collected by a governmental authority; and (F) “governmental authority” means any nation or government, any state, local or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing. The definition of “government authority” shall apply to the entire agreement, and any reference to “governmental approval,” “governmental consent,” or similar terms means action by a government authority.
(b) Indemnification Obligations of Sellers. (i) From and after the Closing and subject to the limitations set forth in this Section 2.09, each Seller (“Indemnifying Seller”) indemnifies the Buyer and its Affiliates, their respective equity holders (other than the Indemnifying Seller) and the representatives of each of the foregoing (collectively, the “Buyer Indemnified Persons”) for, and shall save and hold each of them harmless against, and pay on each of their behalf or reimburse each of them for, any Damages that any such Buyer Indemnified Person suffers, sustains or becomes subject to, directly or indirectly, as a result of or in connection with: (A) any inaccuracy in or breach of any representation or warranty made by the Indemnifying Seller in this Agreement; (B) any nonfulfillment, nonperformance or other breach of any covenant, obligation or agreement
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of the Indemnifying Seller in this Agreement that is not remedied in any applicable cure period, if any; or (C) criminal act, violation of Securities Laws, fraud or gross negligence by Indemnifying Seller.
(ii) From and after the Closing and subject to the limitations set forth in this Section 2.09, LLC shall indemnify each of the Buyer Indemnified Persons for, and shall save and hold each of them harmless against, and pay on each of their behalf, any Damages that any such Buyer Indemnified Person suffers, sustains or becomes subject to, directly or indirectly, as a result of or in connection with: (A) any inaccuracy in or breach of any representation or warranty made by the LLC in this Agreement; (B) any nonfulfillment, nonperformance or other breach of any covenant, obligation or agreement of the LLC in this Agreement; (C) Taxes (or the non-payment thereof) of the LLC or otherwise in relation to the conduct of the businesses of the LLC for any Pre-Closing Tax Period, (iii) Taxes of any member of an affiliated, consolidated, combined or unitary group of which the LLC (or any predecessor) is or was a member on or prior to the Closing Date, including pursuant to Section 1.1502-6 of the Treasury Regulations or any analogous or similar legal requirement, (D) Taxes of any person that relate to an event or transaction occurring on or before the Closing Date that are imposed on the LLC as a transferee or successor, by contract or pursuant to any legal requirement, or (E) Taxes or other Damages incurred by Buyer pursuant to Section 280G of the Code in connection with the Exchange; (F) any Liability under Title IV of ERISA that is imposed on the LLC solely due to the LLC being a “Seller ERISA Affiliate” (as defined under the Employee Retirement Income Security Act of 1974, as amended, or “ERISA”); and (G) any Proceeding relating to any of the foregoing, including any Proceeding commenced by a Buyer Indemnified Person for purposes of enforcing such Buyer Indemnified Person’s rights under this Section 2.09, if such Buyer Indemnified Person is the prevailing party in such Proceeding; and (H) criminal act, violation of Securities Laws, fraud or gross negligence by LLC.
(c) Indemnification Obligations of Buyer. From and after the Closing and subject to the limitations set forth in this Section 2.09, Buyer shall indemnify each of the Sellers and their respective Affiliates, their respective equity holders and the representatives of each of the foregoing (collectively, the “Seller Indemnified Persons”) for, and shall save and hold each of them harmless against, and pay on each of their behalf or reimburse each of them for, any Damages that any such Seller Indemnified Person suffers, sustains or becomes subject to, directly or indirectly, as a result of or in connection with: (i) any inaccuracy in or breach of any representation or warranty made by Buyer in this Agreement; (ii) any nonfulfillment, nonperformance or other breach of any covenant, obligation or agreement of Buyer in this Agreement; and (iii) any Proceeding relating to any of the foregoing, including any Proceeding commenced by a Seller Indemnified Person for purposes of enforcing such Seller Indemnified Person’s rights under this Section 2.09, and such Seller Indemnified Person is the prevailing party in such Proceeding; and (iv) conviction of a felony criminal act with no right of appeal available, or act of fraud or gross negligence by Buyer.
(d) Certain Limitations and Guidelines. The following provisions modify Section 2.09(a), (b), and (c) above.
(i) No Seller shall have liability for any Damages for which Seller would, but for this sentence, be liable until the aggregate amount of all such Damages equals or exceeds on a cumulative basis an amount equal to One Hundred Thousand Dollars and No Cents ($100,000.00) (the “Deductible Amount”).
(ii) Buyer shall have no liability under Section 2.09 for any Damages related thereto for which Buyer would, but for this sentence, be liable until the aggregate amount of all such Damages equals or exceeds on a cumulative basis an amount equal to Deductible Amount.
(iii) The LLC shall have no liability under Section 2.09 for any Damages related thereto for which the LLC would, but for this sentence, be liable until the aggregate amount of all such Damages equals or exceeds on a cumulative basis an amount equal to the Deductible Amount. The assumption of the Debt by LLC under Section 2.05(c) above is not affected or reduced by the Deductible Amount.
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(iv) Payments by an Indemnifying Party pursuant to Section 2.09(d) in respect of any Damages are to be reduced by any insurance proceeds actually received by the Indemnified Person with respect to any such claim (net of any related costs incurred in connection therewith, including deductibles, retroactive premiums and premium increases). Each Indemnified Person shall use commercially reasonable efforts to recover under applicable insurance policies for any Damages prior to seeking indemnification under this Agreement and to disclose any such recovery to Indemnifying Party.
(v) Each Indemnified Person shall use commercially reasonable efforts to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto; provided, however, no Indemnified Person is to be required to incur any unreasonable costs in connection therewith.
(vi) The representations, warranties, covenants, obligations and agreements of the parties, and an indemnified party’s or person’s right to indemnification or other remedy with respect thereto or otherwise under this Section 2.09, are not be affected or deemed waived by reason of any investigation made by or on behalf of such indemnified party or person, or respective Affiliates, or by reason of the fact that such indemnified party or person, or respective Affiliates knew or should have known that any such representation, warranty, covenant, obligation or agreement is, was or might be inaccurate, breached or not complied with, or by reason of such indemnified party’s or person’s waiver of any condition set forth in Section 2.09.
(vii) The parties intend for each representation, warranty, covenant, obligation, and agreement contained in this Agreement to have independent significance. If an inaccuracy exists in, or any party has breached, any representation, warranty, covenant, obligation or agreement contained in this Agreement in any respect, the fact that there exists another representation, warranty, covenant, agreement or obligation relating to the same subject matter (regardless of the relative levels of specificity) that is accurate or such party has not breached is not to detract from or mitigate the fact that an inaccuracy exists in, or such party is in breach of, the first representation, warranty, covenant, obligation or agreement.
(vii) Notwithstanding anything in this Agreement to the contrary, no party shall be entitled to recover punitive or exemplary damages, or loss of future income or loss of appreciation of assets or investments or securities, from any other party, except to the extent such party is required to pay such damages to a third-party in connection with any Proceeding made or brought by any person who is not a party, an Affiliate of a party, or an Affiliate of a party (a “Third-Party Claim”). This Section 2.09(d)(viii) does not apply to or govern any assumption of the Debt by LLC under Section 2.05(c) above
(e) Procedure for Indemnification – Third-Party Claims.
(i) For purposes of this Section 2.09(e), “Indemnifying Party” means a party obligated to indemnify another party or person under this Section 2.09, and “Indemnified Person” means a party or person entitled to indemnification under this Section 2.09. If an Indemnified Person receives notice of the assertion or commencement of any Proceeding for a Third-Party Claim against such Indemnified Person with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Person shall give the Indemnifying Party prompt written notice of such Third-Party Claim. “Prompt” means within seven (7) days after the first date on which the Indemnified Person learns about or reasonably should know about the Third-Party Claim. The failure to give such prompt written notice will not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure or a court finds the delay unfairly prejudiced the Indemnifying Party by substantially increasing the liability of the Indemnifying Party or significantly hampered or adversely affected the ability of the Indemnifying Party to assert any viable defense against the Third-Party Claim. The notice by the Indemnified Person must describe the Third-Party Claim and claimants in reasonable
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detail and must indicate the estimated amount, if reasonably practicable, of the Damages that have been or could be sustained by the Indemnified Person.
(ii) The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party within thirty (30) days after being notified of a Third-Party Claim by the Indemnified Person in accordance with Section 2.09(e) and unconditionally acknowledging in writing the Indemnifying Party’s indemnification obligations to the Indemnified Person with respect to such Third-Party Claim, to assume the defense of such Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own legal counsel (such legal counsel must be reasonably acceptable to the Indemnified Person), and the Indemnified Person shall cooperate in good faith in the defense of the Third-Party Claim. The Indemnified Person shall have the right, at its or his or her own cost and expense, to participate in the defense of any Third-Party Claim with legal counsel selected by the Indemnified Person subject to the Indemnifying Party’s right to control the defense thereof and, in any event, the Indemnifying Party shall keep the Indemnified Person fully apprised as to the status of such defense. If the Indemnifying Party elects not to assume the defense of such Third-Party Claim or fails to timely notify the Indemnified Person in writing of the Indemnifying Party’s election to assume the defense of such Third-Party Claim as provided in this Agreement, the Indemnified Person shall be entitled to, subject to Section 2.09(d), pay, compromise and defend such Third-Party Claim and seek indemnification for any and all Damages based upon, arising out of, with respect to or by reason of such Third-Party Claim. Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available records relating to such Third-Party Claim (to the extent permitted by applicable legal requirements) and making available, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party in such a manner as not to unreasonably interfere with the normal operations of the non-defending party, as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.
(iii) Notwithstanding anything in this Agreement to the contrary, if (A) the Indemnifying Party is given notice of a Third-Party Claim in compliance with Section 2.09 (e)(i) and fails to notify the Indemnified Person of the Indemnifying Party’s election to defend such Third-Party Claim within the time prescribed in Section 2.09(e)(ii) or fails to unconditionally acknowledge in writing the Indemnifying Party’s indemnification obligations to the Indemnified Person with respect to such Third-Party Claim, (B) the claim for indemnification is based upon, arises out of, is with respect to or is by reason of any criminal or quasi-criminal Proceeding, (C) the relief sought in connection with the Third-Party Claim is not solely monetary damages, (D) the Indemnified Person reasonably concludes, based upon advice of legal counsel, that either a conflict exists between the Indemnifying Party and the Indemnified Person in connection with the defense of the Third-Party Claim or there are legal defenses available to the Indemnified Person that are different from or additional to those available to the Indemnifying Party, or (E) the defense of the Third-Party Claim is not instituted and continuously maintained in good faith by the Indemnifying Party, then, in any such case, the Indemnified Person is entitled to assume the defense of such Third-Party Claim and assert a claim against the Indemnifying Party for indemnification with respect to such Third-Party Claim pursuant to the terms of this Section 2.09, with the reasonable costs and expenses of such defense to be included in the amount of Damages sought pursuant to such indemnification. The Indemnifying Party shall cooperate in good faith with the Indemnified Person with respect to the transfer of the defense of such Third-Party Claim from the Indemnifying Party to the Indemnified Person in accordance with this Section 2.09(e)(iii).
(iv) Notwithstanding anything in this Agreement to the contrary, the Indemnifying Party shall not enter into a settlement of any Third-Party Claim without the prior written consent of the Indemnified Person (such consent not to be unreasonably withheld, conditioned or delayed), except as provided in this Section 2.09(e). If a firm offer is made to settle a Third-Party Claim without leading to Liability or the creation of a financial or other obligation on the part of the Indemnified Person and provides, in customary form, for the unconditional release of each Indemnified Person from all Liabilities in connection with such
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Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Person. If the Indemnified Person fails to consent in writing to such firm offer within fifteen (15) days after the Indemnified Person’s receipt of such notice, the Indemnified Person shall be entitled to continue to contest or defend such Third-Party Claim and, in such event, the maximum Liability of the Indemnifying Party as to such Third-Party Claim is not to exceed the amount of such settlement offer. If the Indemnified Person fails to consent to such firm offer and also fails to timely assume defense of such Third-Party Claim, the Indemnifying Party shall be entitled to settle the Third-Party Claim upon the terms set forth in such firm offer to settle such Third-Party Claim. If the Indemnified Person has assumed the defense of any Third-Party Claim pursuant to Section 2.09(e)(ii) or Section 2.09(e)(iii) and the Indemnifying Party has unconditionally acknowledged in writing the Indemnifying Party’s indemnification obligations to the Indemnified Person with respect to such Third-Party Claim, the Indemnified Person shall not agree to any settlement of such Third-Party Claim without the written consent of the Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).
(f) Procedure for Indemnification – Direct Claims. Any claim by an Indemnified Person on account of Damages that do not result from a Third-Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Person by giving the Indemnifying Party prompt written notice thereof. “Prompt” means within twenty (20) days after the first date on which the Indemnified Person learns about or reasonably should know about the Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure, or the liability of the Indemnifying Party is significantly increased by reason of such failure. The notice by the Indemnified Person must describe the Direct Claim and claimants in reasonable detail and must indicate the estimated amount, if reasonably practicable, of the Damages that have been or could be sustained by the Indemnified Person. The Indemnifying Party shall have thirty (30) days after its receipt of such notice to respond in writing to such Direct Claim. During such thirty (30) day period, the Indemnified Person shall allow the Indemnifying Party and its legal counsel or other representatives to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Person shall reasonably assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Indemnified Person’s premises and personnel and the right to examine and copy any accounts, documents, files or records) as the Indemnifying Party or any of its legal counsel or other representatives reasonably requests, in each such case, in such a manner as not to unreasonably interfere with the normal operations or business of the Indemnified Person. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party is to be deemed to have rejected such Direct Claim, in which case the Indemnified Person shall be entitled to pursue such remedies as are available to the Indemnified Person on the terms and subject to the provisions of this Agreement.
2.10. LLC Assets. The LLC and each of the Sellers agrees, covenants and represents that the LLC assets, including all operating assets, oil and gas drilling and production rights, leases and agreements, owned or controlled by the LLC as of the Effective Date will remain and be the sole personal property of the LLC as of and after the consummation of the Closing, and the LLC will not be dissolved under laws of Mississippi or LLC Operating Agreement as a result of the Exchange. Further, the LLC balance sheet as of the Effective Date and as of the Closing will be substantially the same, excepting usual and customary adjustments resulting from conduct of LLC business in the routine, normal conduct of business. LLC and Sellers will not sell, transfer, assign, pledge or encumber any assets of LLC after the Effective Date without the prior, informed, and written consent of the Buyer. LLC and Sellers have not sold, transferred, assigned, pledged, or encumbered any assets of LLC from December 31, 2019, through the Effective Date, except as expressly stated in Exhibit B hereto.
2.11. Debt Assumption Waivers. LLC and Sellers will have obtained all consents or waivers required under the agreements and instruments evidencing any portion of the Debt for the Exchange, and related
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transactions will do so prior to the Closing Date. Evidence of this consent and waiver will be provided to the Buyer at least seven (7) days prior to the Closing and will also be Deliverables required under this Agreement for the Exchange.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to Sellers and LLC as follows:
Section 3.01. Corporate Existence and Power. The Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the Commonwealth of Virginia and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to own, lease or otherwise hold its properties and assets and to carry on its business as now conducted, except for those licenses, authorizations, permits, consents, and approvals the absence of which would not have, individually or in the aggregate, a Material adverse effect on the Buyer. The Buyer is duly qualified to do business as a corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not have, individually or in the aggregate, and except as disclosed in the SEC filings of the Buyer, a Material adverse effect on the Buyer or materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement.
Section 3.02. Corporate Authorization. The execution, delivery, and performance by the Buyer of this Agreement and the consummation by the Buyer of the transactions contemplated hereby are within the Buyer's corporate powers and have been duly authorized by all necessary corporate action on the part of the Buyer. The Buyer has duly executed and delivered this Agreement, and this constitutes a valid and binding agreement of the Buyer, enforceable against the Buyer in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law)
Section 3.03. Governmental Authorization. The execution, delivery and performance by the Buyer of this Agreement and the consummation by the Buyer of the transactions contemplated hereby require no action, consent, approval, authorization, permit or order by or in respect of, or filing, declaration or registration with, any governmental authority or agency in the United States or any state thereof, other than (i) compliance with any applicable requirements of the 1933 Act, the 1934 Act and any other applicable state securities or takeover or exchange transaction laws, including possible SEC review of a preliminary information statement or state review of articles of merger or exchange, if any, filed for the transactions contemplated herein, (ii) compliance with the rules and regulations of any national securities exchange that lists or quotes the Buyer’s Common Stock, and (iii) any actions or filings the absence of which would not have, individually or in the aggregate, a Material adverse effect on the Buyer or materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement.
Section 3.04. Non-Contravention. The execution, delivery and performance by the Buyer of this Agreement and the consummation by the Buyer of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the certificate of incorporation or bylaws of the Buyer, (ii) assuming compliance with the matters referred to in Section 3.03, contravene, conflict with, or result in a violation or breach of any provision of any applicable law, statute, ordinance, rule, regulation, judgment, injunction, order or decree, or (iii) require any consent or other action by any Person under, constitute a default under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Buyer is entitled under any
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provision of any agreement or other instrument binding upon the Buyer or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of the Buyer except for such contraventions, conflicts and violations referred to in clause (ii) and for such failures to obtain any such consent or other action, defaults, terminations, cancellations, accelerations, changes or losses referred to in clause (iii) that would not have, individually or in the aggregate, a Material adverse effect on the Buyer or materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement.
Section 3.05. Capitalization. (a) The authorized capital stock of the Buyer consists of the following and is more fully described in the Buyer’s SEC filings and Exhibit A hereto:
Title of Securities | Shares Authorized | Shares Issued | Shares subject to any options, puts, rights or warrants |
Common Stock | 300,000,000 | One (1) as of January 31, 2020 | None as of January 31, 2020 |
(b) Voting Rights. Common Stock has one (1) vote per share on all matters presented for shareholder approval.
(c) No outstanding shares of capital stock of the Buyer have been issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the laws of the Commonwealth of Virginia, the certificate of incorporation or by-laws of the Buyer or any contract to which the Buyer is bound, except for such violations which would not have, individually or in the aggregate, a Material adverse effect on the Buyer.
Section 3.06. Financial Statements. The audited financial statements and un-audited consolidated interim financial statements of the Buyer as filed with the SEC fairly presents, in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of the Buyer as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject to normal year-end adjustments in the case of any un-audited interim financial statements).
Section 3.07. No Undisclosed Material Liabilities. The Buyer has no other liabilities or obligations of any material nature required by GAAP to be set forth on a consolidated balance sheet of the Buyer or in the notes thereto, other than:
(a) liabilities or obligations disclosed to the Sellers and LLC in Buyer’s SEC filings or Exhibit B hereto;
(b) liabilities and obligations incurred in the ordinary course of business since inception and with a face amount value of Two Million Seven Hundred Thousand Dollars and No Cents ($2,700,000); and
(c) liabilities or obligations that would not have, individually or in the aggregate, a Material adverse effect on the Buyer (as determined by the Buyer in its reasonable determination).
Section 3.08. Compliance With Laws. The Buyer is in compliance with and, to the knowledge of the Buyer, have not been charged with or given written notice of any violation of, any applicable laws, except for failures to comply or violations that would not have, individually or in the aggregate, a Material adverse effect on the Buyer or materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement.
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Section 3.9. Litigation. There is no action, suit or proceeding pending against or, to the knowledge of the Buyer, threatened against or affecting, the Buyer that would have, individually or in the aggregate, a Material adverse effect on the Buyer, nor is there any judgment outstanding against the Buyer or any Subsidiary of the Buyer that would have a Material adverse effect on the Buyer or materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement.
Section 3.10. Absence of Certain Changes. Except as disclosed to the Buyer, from the inception to the date of this Agreement, the business of the Buyer has been conducted in the ordinary course, and during such period there has not been any event, effect or development that has had, individually or in the aggregate, a Material adverse effect on the Buyer or would materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement.
Section 3.11. Intellectual Property. Except as disclosed to the Sellers and LLC in Exhibit B hereto, no claims are pending or, to the knowledge of the Buyer, threatened that the Buyer is infringing or otherwise adversely affecting the rights of any Person with respect to any Intellectual Property Right, except for such claims that would not have, individually or in the aggregate, a Material adverse effect on the Buyer or would not materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement.
Section 3.12. Issued Shares. When issued to Sellers pursuant to the terms of this Agreement, the Payment Shares will be duly authorized, validly issued, fully paid and non-assessable and will be free and clear of encumbrances or liens of any kind, other than restrictions imposed by applicable Securities Laws. Buyer has a Form S-1 Registration Statement that has been declared effective by the SEC, but the offering and underlying equity securities have not been qualified under state securities laws as of the Effective Date, and the registered securities are not available for issuance under this Agreement or in the Exchange. There are no registration rights for the Payment Shares.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Each of the Sellers and the LLC, as the case may be, represents, and warrants to Buyer as follows:
Section 4.01. Company Existence And Power. (a) The LLC is a company duly and validly existing and in good standing under the laws of State of Mississippi and has all company powers and all governmental licenses, authorizations, permits, consents and approvals required to own, lease or otherwise hold its properties and assets and to carry on its business as now conducted, except for those licenses, authorizations, permits, consents, and approvals the absence of which would not have, individually or in the aggregate, a Material adverse effect on LLC. The LLC is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not have, individually or in the aggregate, a Material adverse effect on the LLC or materially impair the ability of the Seller to consummate the transactions contemplated by this Agreement.
(b) LLC hereby certifies that LLC is not in violation of its Articles of Organization or Operating Agreement, nor is the LLC (i) in default under or in violation of any other material agreement or instrument to which it is a party or by which it or any of its properties are bound or affected, which default or violation would have a material adverse effect on LLC, (ii) in default with respect to any order of any court, arbitrator or governmental body or subject to or party to any order of any court or governmental authority arising out of any action, suit or proceeding under any statute or other law respecting antitrust, monopoly, restraint of trade, unfair competition or similar matters, or (iii) to its knowledge in violation of any statute, rule or regulation of any governmental authority which violation would have a material adverse effect on the LLC.
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(c) Debt. The Debt is a lawful debt obligation of the LLC that was incurred for valid business purposes (as set forth in Schedule One hereto) and is not, in whole or in part, the result of LLC assuming the debts of any Seller or Sellers. LLC represents that it has all of the authorizations required to transfer the Debt to Buyer under this Agreement and that the assumption of the Debt by Buyer will not breach or violate any agreement, instrument or other obligation owed to the third party who is owed payment under any portion of the Debt. LLC represents that the Debt does not consist of any compensation obligation owed to a Seller or any of the LLC’s managers, officers, directors, employees, or contractors. The Buyer will not assume any guarantor’s obligation with respect to any portion of the Debt assumed under this Agreement.
Section 4.02. Authorization. The execution, delivery, and performance by each of the Sellers of this Agreement is voluntary and without coercion or undue influence, and each Seller has had reasonable opportunity to consult Seller’s legal counsel about this Agreement prior to signing below. The consummation by the LLC of the transactions contemplated hereby and thereby are within the LLC’s company powers and have been duly authorized by all necessary company action on the part of the LLC. The LLC and each of the Sellers have duly executed and delivered each of this Agreement, and this Agreement constitutes a valid and binding agreement of each of the Sellers and LLC and this Agreement constitutes a valid and binding agreement of the LLC and each of the Sellers, enforceable against the LLC and each of the Sellers in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law).
Section 4.03. Governmental Authorization. Other than articles of merger or exchange to be filed with the State of Mississippi, if required, and the filing of any documents or reports to establish for the record the change of control of the LLC under the Exchange and this Agreement and in respect to title to LLC assets, if required, the execution, delivery and performance by the Sellers and LLC of this Agreement and the consummation by the Sellers and LLC of the transactions contemplated hereby require no action, consent, approval, authorization, permit or order by or in respect of, or filing, declaration or registration with, any governmental authority or agency in the United States thereof, other than (i) compliance with and filings and review under any applicable securities requirements and exchange transactions under laws of the State of Mississippi and (ii) any actions or filings the absence of which would not have, individually or in the aggregate, a Material adverse effect on the Sellers or LLC, or materially impair the ability of the Sellers or LLC to consummate the transactions contemplated by this Agreement.
Section 4.04. Non-Contravention. The execution, delivery and performance by the Sellers and LLC of this Agreement and the consummation by the Sellers and LLC of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the articles of organization or operating agreement of the LLC or contractual obligations of any of the Sellers, (ii) assuming compliance with the matters referred to in Section 4.03, contravene, conflict with, or result in a violation or breach of any provision of any applicable law, statute, ordinance, rule, regulation, judgment, injunction, order or decree, or (iii) require any consent or other action by any Person under, constitute a default under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which any of the Sellers or LLC is entitled under any provision of any agreement or other instrument binding upon the Seller or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of the LLC or any of the Sellers except for such contraventions, conflicts and violations referred to in clause (ii) and for such failures to obtain any such consent or other action, defaults, terminations, cancellations, accelerations, changes or losses referred to in clause (iii) that would not have, individually or in the aggregate, a Material adverse effect on the Sellers or the LLC, or materially impair the ability of the Sellers and LLC to consummate the transactions contemplated by this Agreement.
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Section 4.05. Outstanding LLC Membership Interests. The Sellers or LLC, as the case may be, hereby warrants to Buyer that:
(a) The ownership of the LLC Membership Interests by each of the Sellers is set forth in Exhibit A hereto. As of the Effective Date of this Agreement, there were outstanding (i) no LLC Membership Interests not listed in Exhibit A hereto and (ii) no options or warrants issued or outstanding for the LLC Membership Interests. No person other than the Seller owns his/her LLC Membership Interests or has any interest in, title to, or claim against those LLC Membership Interests. All outstanding LLC Membership Interests have been duly authorized and validly issued and are fully paid and nonassessable;
(b) No Membership Interests of the LLC have been issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any Securities Laws, the articles of organization or operating agreement of the LLC or any contractual obligations of any of the Sellers, except for such violations which would not have, individually or in the aggregate, a Material adverse effect on the Sellers or LLC.
(c)The LLC Membership Interests being purchased from the Sellers are clear of any security interests, liens, claims or other encumbrances, and the LLC Membership Interests will be duly and validly issued, fully paid and nonassessable upon exchange; will not have been issued or sold in violation of any preemptive or other similar rights of the Members of the LLC; and will not subject the holders thereof to personal liability by reason of being such holders.
(d) There are no outstanding agreements or preemptive or similar rights affecting any of the Sellers’ LLC Membership Interests, including no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, or agreements or understandings with respect to the sale or issuance of any LLC Membership Interests of Sellers.
Section 4.06. Financial Statements. The unaudited financial statements and unaudited consolidated interim financial statements of the LLC tendered to the Buyer at least ten (10) days prior to the Closing fairly present the consolidated financial position of the LLC as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject to normal year-end adjustments in the case of any unaudited interim financial statements).
Section 4.07. No Undisclosed Material Liabilities. The LLC has no other liabilities or obligations of any nature, other than:
(a) liabilities or obligations disclosed in the materials submitted to Buyer in Exhibit B hereto;
(b) liabilities and obligations incurred in the ordinary course of business since inception and not exceeding One Hundred and Fifty Thousand Dollars and No Cents ($150,000.00) in face amount; and
(c) liabilities or obligations that would not have, individually or in the aggregate, a Material adverse effect on the LLC.
Section 4.08. Compliance With Laws. The LLC and each of the Sellers are in compliance with and, to the knowledge of each of the Sellers and to the knowledge of the LLC, and LLC and each of the Sellers has not been charged with or given written notice of any violation of, any applicable laws, except for failures to comply or violations that would not have, individually or in the aggregate, a Material adverse effect on the LLC or the Sellers or materially impair the ability of the LLC or Sellers to consummate the transactions contemplated by this Agreement.
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Section 4.09. Litigation. There is no action, suit or proceeding pending against or, to the knowledge of LLC or any of the Seller, threatened against or affecting, the LLC or the Sellers that would have, individually or in the aggregate, a Material adverse effect on the LLC or the Sellers, nor is there any judgment outstanding against any of the Sellers or LLC or any subsidiary of the LLC that would have a Material adverse effect on the LLC or any of the Sellers or materially impair the ability of the LLC or Sellers to consummate the transactions contemplated by this Agreement. LLC has no subsidiaries as of the Effective Date.
Section 4.10. Absence Of Certain Changes. The business of the LLC has been conducted in the ordinary course since inception, and there has not been any event, effect or development that has had, individually or in the aggregate, a Material adverse effect on the LLC or would materially impair the ability of the LLC to consummate the transactions contemplated by this Agreement. The operating assets of the LLC will be substantially the same as of the Effective Date and the Closing, excepting changes resulting from usual and customary adjustments resulting from conduct of LLC business in the ordinary course of conduct.
Section 4.11. Third-Party Rights. No claims are pending or, to the knowledge of the LLC or any of the Sellers, threatened that the LLC or any of the Sellers are infringing or otherwise adversely affecting the rights of any Person, except for such claims that would not have, individually or in the aggregate, a Material adverse effect on the LLC or the Seller or would not materially impair the ability of the LLC or the Sellers to consummate the transactions contemplated by this Agreement. Each Seller agrees not to enter into any agreement or commitment to sell, transfer, assign, encumber or pledge Seller’s Membership Interests and Seller represents that no such agreement or commitment exists as of the Effective Date.
Section 4.12. No Violation or Conflict. Neither the sale of the LLC Membership Interests nor the performance of its obligations under this Agreement entered into by the Sellers or LLC will:
(a) violate conflict with, result in a breach of, or constitute a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute a default) under the articles of organization or operating agreement of the LLC.
(b) to each of the Seller's knowledge and to best of knowledge of LLC, violate, conflict with, result in a breach of, or constitute a default of any decree, judgment, order, law, custody or property settlement agreement or court order, treaty, rule, regulation or determination applicable to the LLC Membership Interests being purchased in this Agreement;
(c) violate, conflict with, result in a breach of, or constitute a default of any terms of any bond, debenture, note or any other evidence of indebtedness, or any agreement, stock option or other similar plan, indenture, lease, mortgage, deed of trust or other instrument to which LLC or any of the Sellers are a party, by which the LLC or any of the Sellers is bound, or to which any of the properties of the LLC or any of the Sellers is subject;
(d) result in the creation or imposition of any lien, charge or encumbrance upon the Membership Interests of the LLC being sold hereunder;
(e ) breach any agreement, instrument, or commitment for any portion of the Debt; or
(f) to best of knowledge of LLC and to best of knowledge of each Seller, violate any law or regulation applicable to LLC or Seller or LLC Membership Interests.
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Section 4.14. Correctness of Representations. Each of the Sellers represents to Buyer that the foregoing representations and warranties are true and correct as of Effective Date and the Closing Date in all material respects, will be true and correct as of the Closing Date, and, unless the Seller otherwise notifies the Buyer prior to the Closing Date in writing, shall be true and correct in all material respects as of the Closing Date. The foregoing Seller representations and warranties shall survive the Closing Date. LLC represents to Buyer that the foregoing representations and warranties are true and correct as of Effective Date and the Closing Date in all material respects, will be true and correct as of the Closing Date, and, unless the LLC otherwise notifies the Buyer prior to the Closing Date in writing, shall be true and correct in all material respects as of the Closing Date. The foregoing LLC representations and warranties shall survive the Closing Date
Section 4.15 Conduct of the LLC. From the date hereof until and through the Closing, the LLC will not take any Prohibited Action without prior notice to and informed written consent of the Buyer. LLC will conduct its business and operate and maintain its assets in a prudent manner after the Effective Date.
Section 4.16. No Solicitation. The LLC and each of the Sellers shall not, nor shall it or he or her authorize or permit any of their respective agents, officers, directors, managers, employees, investment bankers, attorneys or other advisors or representatives to, directly or indirectly, solicit, initiate or encourage the submission of, any offer by a third party to acquire any rights, interests, claims or title to the LLC Membership Interests.
Section 4.17. Business of the LLC. The LLC owns and has good and marketable title to, or a valid leasehold interest in, the properties and assets used by it, or shown on the most recent balance sheet or acquired after the date thereof, free and clear of all liens or encumbrances (other than encumbrances and liens permitted by Buyer), except for properties and assets disposed of in the ordinary course of business and for fair market value since such date. LLC’s primary assets are oil drilling and production rights, leases, and interests in the Gulf State Region. The LLC shall own and have good and marketable title to, or a valid leasehold interest in, all of such properties and assets as of and immediately following the Effective Date and as of the Closing. All buildings, equipment, drilling rigs, tools, storage tanks, pipes, trucks, and other vehicles and other items of tangible personal property owned or leased by the LLC are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such items is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. Such assets are sufficient for the continued conduct of the business by the LLC after the Closing in substantially the same manner as conducted prior to the Closing and as currently proposed to be conducted. Upon consummation of the Exchange, LLC will continue to own and have good and marketable title to all of the aforementioned operating assets and related oil drilling and production rights, leases, and interests.
ARTICLE 5
ADDITIONAL COVENANTS OF PARTIES
Each party agrees that:
Section 5.01. Reasonable Best Efforts. (a) Subject to the terms and conditions of this Agreement, each party will use its, his or her reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the transactions contemplated by this Agreement including, without limitation, using its reasonable best efforts to cause the conditions herein to be satisfied as soon as reasonably possible and, subject to the terms and conditions of this Agreement, consummating the sale of the LLC Membership Interests as soon as possible after such conditions are satisfied or waived.
Section 5.02. Certain Filings. Each party shall cooperate with the other parties in connection with the preparation of any filings required by the SEC or state agencies or other regulatory entities in connection with
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the transactions contemplated herein, (ii) in 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 (iii) in taking such actions or making any such filings, furnishing information required in connection therewith or with the filings in connection with the transactions contemplated herein and seeking timely to obtain any such actions, consents, approvals or waivers. Each Seller agrees, understands and acknowledges that Buyer is a reporting company under the 1934 Act and that each Seller is solely, personally responsible and liable for making any required filings on Form 3, Form 4, Form 5, Schedule 13D, Schedule 13G and Form 144 under the 1934 Act in respect of ownership of and transactions in the Payment Shares, or status as a director of the Buyer, and that these filings are not filings by or the responsibility of the Buyer. Each Seller will consult his or her or its own legal counsel about obligations to file any of the aforementioned SEC filings. A Seller must obtain SEC filing codes on Form ID and arrange for an EDGAR commercial filing service to file any such 1934 Act filings by Seller. Buyer is not responsible for and will not pay the cost and fees for making any of the aforementioned 1934 filings. These SEC filings have short filing deadlines that cannot be extended. If a Seller obtains voting control of the Buyer through the Exchange, then that Seller is a “control person” and has certain liabilities based on that status. Any Seller who becomes a “control person” agrees to consult his, her, or its obligations and liabilities as a control person.
Section 5.03. Public Announcements. The Buyer will issue a press release and file a Form 8-K and amendments (as well as possible other SEC filings) with the SEC reporting and announcing the execution of this Agreement. The Buyer will endeavor to consult with Sellers and LLC before issuing any press release or filing the Form 8-K and any amendments thereto or other SEC filings with the SEC, but the Buyer will be entitled to make the Form 8-K filing and amendments thereto and other SEC filings with the SEC or state regulators and other filings and disclosures to the SEC and state regulators without the review or approval or edits of the LLC or any of the Sellers due to the Buyer’s legal obligation to timely file that report with the SEC and other regulators.
Section 5.04. Notices of Certain Events. Each of the parties shall promptly notify the other party of:
(a)any notice or other communication from any person alleging that the consent of such person is or may be required in connection with the transactions contemplated by this Agreement; or
(b)any notice or other communication from any governmental authority or regulatory agency or authority in connection with the transactions contemplated by this Agreement or the Exchange; or
(c)any commencement or threatened commencement of any lawsuit or similar legal proceeding, enforcement action, investigation, arbitration, administrative proceedings, bankruptcy, or insolvency proceeding that may or would hinder, bar, or adversely impact any transactions contemplated herein.
ARTICLE 6
TERMINATION
Section 6.01. Termination. This Agreement may be terminated at any time as follows: (a) This Agreement may be terminated by a written consent signed by all of the parties; (b) terminated by the Buyer if all of the Sellers do not sign and tender an original of this Agreement to the Buyer or do not tender all of their LLC Membership Interests to Buyer in the Exchange and upon written notice to the LLC and Sellers, or if the LLC Membership Interests tendered by Sellers in Exchange do not represent 100% of all LLC Membership Interests as of the Closing; (c) Buyer may terminate this Agreement if the Buyer determines that the compliance with Securities Laws for the issuance of the Payment Shares will require registration of the Payment Shares under the 1933 Act or any state securities laws; (d) Buyer may terminate this Agreement upon ten (10) days’
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prior written notice to the other parties if any of the other parties refuses to allow or reasonably cooperate with any due diligence review contemplated under Section 7.09 below; or (e) This Agreement will terminate upon the occurrence of, and with notice by any party, any of the following events: (i) Buyer files for protection from creditors under any chapter of the U.S. Bankruptcy Code, as amended, and the petition is not withdrawn within sixty (60) days of filing; (ii) Buyer’s charter in Virginia is cancelled and not reinstated by the Closing; (iii) Buyer is not an SEC reporting company under the 1934 Act as of the Closing; (iv) Buyer is legally barred from issuing the Payment Shares at the Closing or any Seller cannot deliver all of his, her or its LLC Membership Interests at the Closing; (iv) the Buyer or LLC is insolvent as of the Closing Date; (v) parties are barred from consummating the Closing by a court order or regulatory agency order; (vi) the Sellers cannot deliver at Closing all of the Sellers’ Membership Interests in the LLC, representing one hundred percent (100%) of the outstanding Membership Interests of the LLC; or (vii) the issuance of the Payment Shares or Exchange would violate the Securities Laws.
Section 6.02. Effect of Termination. If this Agreement is terminated pursuant to Section 6.01, this Agreement shall become void and of no effect with no liability on the part of any party (or any stockholder, member, director, officer, employee, agent, consultant or representative of such party) to any other party or parties, PROVIDED that such termination shall not relieve a party from any liability for damages incurred or suffered by the other party as a result of the failure of such party's representations and warranties hereunder to be true or the failure of such party to perform any covenant hereunder. The provisions of Sections 6.02, 8.04, 8.06, 8.07 and 8.08 shall survive any termination hereof pursuant to Section 6.01 for one (1) year after the expiration or termination of this Agreement.
ARTICLE 7
SECURITIES REPRESENTATIONS
Section 7.01. Investment. The Payment Shares are being acquired for each Seller’s own account and with no present intention of distributing the Payment Shares or any part thereof, and each Seller has no present intention of selling or granting any participation in or otherwise distributing the same, in any transaction in violation of the Securities Laws, without prejudice, however, to such Sellers’ right at all times to sell or otherwise dispose of all or any part of the Payment Shares under a registration statement under the Securities Act and applicable state securities laws or under an exemption from such registration available thereunder (including, without limitation, if available, Rule 144 promulgated under the Securities Act (“Rule 144”).
Section 7.02 Receipt of Information. Each Seller acknowledges that it, he or she (a) has access to the SEC filings of the Buyer, (b) has been provided a reasonable opportunity to ask questions of and receive answers from Buyer’s management regarding Buyer, its business and financial condition, SEC filings and the Payment Shares and Exchange, (c) has sought such financial, accounting, legal and tax advice as it, he or she has considered necessary to make an informed investment decision with respect to the acquisition of the Payment Shares, and (d) has knowledge and sophistication, either individually or by virtue of expertise of Seller’s personal representative, to fully understand the risks of being a shareholder of the Buyer in exchange for ownership of the LLC and an investment in the Payment Shares and about the oil and gas exploration and production industry. Neither such inquiries nor any other due diligence investigations conducted at any time by such Seller shall modify, amend or affect such Seller’s right (i) to rely on the Buyer’s representations and warranties contained herein, or (ii) to indemnification or any other remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement.
Section 7.03 Restricted Securities. Each Seller understands that the Payment Shares that Seller is purchasing are “restricted securities” under the Securities Laws inasmuch as they are being acquired from the Buyer in a transaction not involving a registered or public offering and that under the Securities Laws and
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applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances. In this connection, each Seller represents that it is knowledgeable with respect to Rule 144 of the SEC promulgated under the Securities Act.
Section 7.04. Investor Suitability. Buyer will provide each Seller with an Investor Questionnaire at least fifteen (15) days prior to the Closing. Each Seller will complete, date, and sign an Investor Questionnaire provided by the Buyer and tender that Investor Questionnaire at least seven (7) days prior to the Closing.
Section 7.05. Certain Fees. Each party will be solely liable and responsible for all compensation and costs owed to or asserted by that party’s investment bankers, consultants, lawyers, accountants, other professional advisors, brokers and finders engaged or used in connection with this Agreement, Exhibits hereto, transactions and due diligence conducted in connection with the transactions contemplated under this Agreement (collectively, “Transaction Fees and Costs”). Each party indemnifies and holds harmless (“Indemnitor”) the other party for Indemnitor’s Transaction Fees and Costs.
Section 7.06. Reliance on Exemptions. Each Seller understands that the Payment Shares are being offered and sold to such Seller in reliance upon specific exemptions from the registration requirements of Securities Laws and that the Buyer is relying upon the truth and accuracy of, and each Seller’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of Seller set forth herein and in the Investor Questionnaire in order to determine the availability of such exemptions and the eligibility of Seller to acquire the Payment Shares, and determine compliance with Securities Laws and state exchange transaction laws for the Exchange.
Section 7.07. Authority. Each Seller has all necessary power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated thereby. The execution, delivery, and performance by each Seller` of this Agreement and the consummation of the transactions contemplated thereby, have been duly authorized by all necessary action on Seller’s part, and, assuming the due authorization, execution, and delivery by the other parties thereto, this Agreement to which it is a party constitutes the legal, valid and binding obligation of such Seller, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer and similar laws affecting creditors’ rights generally or by general principles of equity, including principles of commercial reasonableness, fair dealing and good faith.
Section 7.08. Taking of Necessary Action. Each of the parties shall use its, her or his commercially reasonable efforts to take or cause to be taken all action promptly and promptly to do or cause to be done all things necessary, proper or advisable under applicable Securities Laws to consummate and make effective the transactions contemplated by this Agreement. Each of the LLC and Sellers agree to execute and deliver all such documents or instruments, to take all appropriate action it determines to be necessary, proper or advisable under applicable Securities Laws and regulations or as otherwise reasonably requested by the other to consummate the transactions contemplated by this Agreement. Without limiting the foregoing, the LLC and each of the Sellers shall use its, his or her commercially reasonable efforts to make all filings and obtain all consents of governmental authorities that may be necessary or, in the reasonable opinion of the Buyer, as the case may be, advisable for the consummation of the transactions contemplated by this Agreement.
Section 7.09. Due Diligence. Each party will be entitled to conduct a usual and customary due diligence review of the other parties, and each party will reasonably cooperate with the due diligence efforts of each of the other parties. The due diligence review period will commence on the Effective Date and be completed within thirty (30) days after the Effective Date. Each party will sign a separate, written confidentiality agreement that is usual and customary in terms and conditions prior to the commencement of any due diligence review hereunder. The parties will each make reasonable accommodations to allow any other party
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to review all reasonably necessary agreements, communications, records, information, data, and files for the conduct of a due diligence review. Each party will be solely liable and responsible for the party’s costs in conducting due diligence of the other parties. Each party acknowledges and agrees that it, she or he shall be responsible for verifying, through its, his or her own due diligence, the accuracy and completeness of all documents and information, including all records and other materials, provided by the other parties to the party, and any reliance by the party on those documents and information shall be at the party’s own risk and expense.
Section 7.10. Each Seller agrees, understands and acknowledges that an investment in or ownership of Payment Shares is a highly risky investment only suitable for investors who do not require liquidity in the investment and afford the loss of the investment and do not need the funds invested to meet ongoing costs of living or essential expenses.
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given,
if to the Buyer, to:
CoJax Oil and Gas Corporation
Attn: Jeffrey Guzy, Chairman / CEO
3033 Wilson Blvd., Suite E-605
Arlington, Virginia 22203
Telephone: (703) 216-8606
Email: jeff@jeffguzy.com
if to Sellers and the LLC, to:
Barrister Energy, LLC
Attn: Andrew S. Cardwell, Managing Member
404 Short 7th Ave.
Laurel, Mississippi 39441
Phone: (214) 450-7746
Email: andrew@cardwellfirm.com
or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m., EST, in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request, or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.
Section 8.02. Survival. The representations and warranties and agreements contained herein and, in any certificate, or other writing delivered pursuant hereto shall survive the Closing and until the expiration of the Rescission Period.
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Section 8.03. Amendments; No Waivers. (a) Any provision of this Agreement may be amended or waived prior to the Closing if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective. Notwithstanding this Section 8.03, a party will be deemed to waive any claim or cause of action if that claim or cause of action is not timely asserted in a Proceeding under the applicable statute of limitations.
(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 8.04. Expenses; Break Up Fee. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. No party will pay or be liable for or owe any break-up fee or termination fee to any of the other parties in the event that this Agreement is terminated in accordance with its terms and conditions prior to or after consummation of the Exchange or the Exchange is rescinded in accordance with the terms and conditions of this Agreement. No party will be entitled to recover damages of any kind whatsoever or any fee or penalty based solely on a failure to the consummate the Exchange due to termination of this Agreement, or rescission of the Exchange, in accordance with terms and conditions of this Agreement. A party may enforce this bar of any claim or cause of action seeking a termination or break-up fee by injunctive relief, and that party will not be required to post a bond or prove damages.
Section 8.05. Successors And Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided, that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 8.06. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of Mississippi, without regard to the conflicts of laws rules of such state.
Section 8.07. Jurisdiction. Subject to compliance with the mandatory arbitration provision in Section 2.08 above, any Proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in U.S. District Court for the Southern District of Mississippi, Hattiesburg Division, or, to the extent no such federal court has jurisdiction over such action, suit or proceeding, any State of Mississippi state court, and each of the parties hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient form. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 8.01 shall be deemed effective service of process on such party.
Section 8.08. Waiver of Jury Trial. Each of the parties hereby irrevocably waives any and all right to trial by jury in any Proceeding arising out of or related to this Agreement or the transactions contemplated hereby.
CONFIDENTIALPage 23
ACQUISITION AGREEMENT
Section 8.09. Counterparts; Effectiveness; Benefit. 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. This Agreement shall become effective when each party shall have received counterparts hereof signed by all of the other parties. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and assigns.
Section 8.10. Entire Agreement. This Agreement, its preamble and Background above, and any Exhibits, Attachments, and Schedules referenced in this Agreement are incorporated herein by reference and constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.
Section 8.11. Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its legal counsel participated in the drafting of this Agreement. Each party acknowledges that it has read and fully understands the terms of this Agreement, that it obtained, or had reasonable opportunity to obtain, legal advice from its own legal counsel in connection with this Agreement, and that it is signing it knowingly and voluntarily.
Section 8.12. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 8.13. No Recourse against Others. All claims, obligations, liabilities, or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arising under, out or by reason of, be connected with, or relate in any manner to this Agreement, or the negotiation, execution, or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made only against (and are expressly limited to) the parties. To the fullest extent permitted by law, no Person other than the parties, shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance or breach; and, to the maximum extent permitted by applicable laws, each of the parties hereby waives and releases all such liabilities, claims, causes of action and obligations against any such person.
Section 8.14. Specific Performance. Subject to compliance with the mandatory arbitration provision in Section 2.08 governing claims, causes of action, disputes or controversies concerning a rescission of the Exchange in accordance with this Agreement or termination of this Agreement in accordance with this Agreement, the parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any federal court or in Mississippi state court, in addition to any other remedy to which they are entitled at law or in equity.
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ACQUISITION AGREEMENT
Section 8.15. Time. Time is of the essence in respect of this Agreement.
Section 8.16. Remedies. The remedies and rights provided by this Agreement are cumulative, and the use of any one right or remedy does not preclude or waive the use of any other or all other rights and remedies. The rights and remedies provided by this Agreement are in addition to any other rights and remedies provided by law or regulation.
Section 8.17. Interpretation. Unless the context otherwise requires, words describing the singular number shall include the plural and vice versa, words denoting any gender shall include all genders, and words denoting natural persons shall include corporations, limited liability companies, and partnerships and vice versa. When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article, Section, Exhibit or Schedule, as applicable, of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “the date hereof,” “the date of this Agreement,” and words of similar import means the day and year first set forth above in the preamble to this Agreement. Unless the context otherwise requires, the terms “neither,” “nor,” “any,” “either” and “or” are not exclusive. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if.”
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective authorized officers as of the Effective Date.
CoJax Oil & Gas CorporationBarrister Energy, LLC
a Florida corporationa Mississippi limited liability company
By: /s/ Jeffrey GuzyBy: /s/ Andrew Cardwell
Name: Jeffrey GuzyName: Andrew Cardwell
Title: Chief Executive Officer and DirectorTitle: Managing Member
Seller Name: Andrew Cardwell
Signature:/s/ Andrew Cardwell
Seller Name: Roger McLeod
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ACQUISITION AGREEMENT
Signature: /s/ Roger McLeod
Seller Name: Jeffrey Delancey
Signature:/s/ Jeffrey Delancey
Seller Name: Lamar Resources, LLC, a limited liability company organized under the laws of the state of Texas (beneficial owner – Marty Rutland)
Signature:/s/ Marty Rutland
Exhibit A
The following sets forth the number of shares, the Payment Shares, issued in exchange for Membership Interests of the LLC:
Name of Member | Number/Percentage of LLC Membership Interests | Shares of Common Stock issued for LLC Membership Interests |
Andrew Cardwell | 5.00% | 182,500 |
Roger McLeod | 80.00% | 2,920,000 |
Jeffrey Delancey | 8.33% | 304,045 |
Lamar Resources, LLC | 6.67% | 243,455 |
For purposes of Buyer’s Shareholder Records, please provide mailing address of each Seller | |
Name of Seller | Address for Stock Ledger of Buyer (no post office box or mail stop) |
Andrew Cardwell | 404 Short 7th, Laurel, MS 39440 |
Roger McLeod | 1050 Woodland Hills Drive, Laurel, MS 39440 |
Jeffrey Delancey | 867 Gates Rd, Columbia, MS 39429 |
Lamar Resources, LLC | 7017 Tilbury CT, McKinney, TX 75071 |
CONFIDENTIALPage 26
ACQUISITION AGREEMENT
As of the Effective Date, Jeff Guzy, Buyer’s senior officer, and director owns one share of Common Stock of Buyer and is the sole shareholder of the Buyer.
Deliverables due at Closing or when stated below:
1)Each party will tender a fully signed, completed, and dated original of this Agreement with exhibits and schedules thereto to each of the other parties.
2)Each Seller will tender to Buyer a certificate evidencing all of its, his or her LLC Membership Interests, and each certificate will have all signatures and certifications required to transfer ownership of the LLC Membership Interests to the Buyer.
3)Each Seller will provide the Buyer with Seller’s full legal name, mailing address (no post office box or mail stops), contact telephone number or email address and Each party will complete, date and sign any certifications, powers, affidavits, agreements, reports, forms, filings and other documents that the Closing attorney reasonably requires and are reasonably necessary to consummate the Exchange.
4)The waiver of consents of the creditors for the Exchange that is required under the agreements or instruments of any portion of the Debt in order to prevent a default or breach under those agreements and instruments, an acceleration of timing to pay the Debt or increase in the interest rate applicable to principal amount of any portion of the Debt.
5)Completed and signed the Investor Questionnaire by each Seller delivered at least seven (7) days prior to the Closing Date.
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Exhibit 2.2 Barrister Purchase Agreement
PURCHASE AND SALE AGREEMENT
between
Central Operating, LLC
As Seller
And
Barrister Energy, LLC
As Buyer
DATED
as of June 1, 2019
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (“Agreement”) is entered into this 1st day of June, 2019, by and between Central Operating, LLC (“Seller”), whose mailing address is P.O. Box 2205, Laurel, Mississippi 39442, and Barrister Energy, LLC (“Buyer”), whose mailing address is P.O. Box 125 Laurel, Mississippi 39441. Seller and Buyer are sometimes referred to herein individually as a “Party,” and collectively as the “Parties.”
W I T N E S S E T H:
WHEREAS, Seller is engaged in the business of exploring for, developing, and producing oil, gas and other hydrocarbons from onshore areas of the United States for its own account and for the joint account of itself and others; and
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties mutually agree as follows:
1.Assets to be Sold and Purchased. Seller agrees to sell and Buyer agrees to purchase, for the consideration hereinafter set forth, and subject to the terms and provisions herein contained, the following described properties, rights and interests:
(a)All of Seller’s right, title and interest in and to the oil, gas and/or mineral leases described in Exhibit A hereto, any ratifications and/or amendments to such leases (whether or not such ratifications or amendments are described in Exhibit A); and
(b)Without limitation of the foregoing, all of Seller’s right, title and interest (of whatever kind or character, whether legal or equitable, and whether vested or contingent) in and to the oil, gas and other minerals in and under or that may be produced from the lands or leases described in Exhibit A hereto, including, without limitation, interests in all oil, gas and/or mineral leases covering such lands, overriding royalties, production payments and net profits interests, fee mineral interests, fee royalty interests and all other interests in such oil, gas and other minerals, even though Seller’s interest in such oil, gas and other minerals may be incorrectly described in, or omitted from, such Exhibit A; and
(c) All of Seller’s right, title and interest in and to, or otherwise derived from, all presently existing and valid oil, gas and/or mineral unitization, pooling, and/or communitization agreements, declarations and/or orders and in and to the properties covered
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Exhibit 2.2 Barrister Purchase Agreement
and the units created thereby (including, without limitation, all units formed under orders, rules, regulations, or other official acts of any federal, state, or other authority having jurisdiction, and voluntary unitization agreements, designations and/or declarations) relating to the properties described in subsections (a) and (b) above; and
(d)All of Seller’s right, title and interest in and to all presently existing and valid rights-of-way and easements, production sales contracts, operating agreements, unit agreements, and other agreements and contracts which relate to any of the properties described in subsections (a), (b) and (c) above; and
(e)All of Seller’s right, title and interest in and to all materials, supplies, machinery, equipment, improvements and other personal property and fixtures (including, but not by way of limitation, all wells, wellhead equipment, pumping units, flowlines, tanks, buildings, injection facilities, saltwater disposal facilities, compression facilities, gathering systems, and other equipment) located on the properties described in subsections (a), (b) and (c) above and used in connection with the exploration, development, operation or maintenance thereof; and
(f)All of Seller’s original lease files, abstracts and title opinions, production records, well files, accounting records (but not including general financial accounting or tax accounting records), electric logs, geological and geophysical data and records (subject to any contractual or other restrictions relating to the transfer of such data and records), and other files, documents and records which directly relate to the properties described above, subject to Seller’s right to retain copies of the same.
(g)All of Seller’s executory contracts, service agreements, operating agreements, oil and gas production, gas gathering, transportation and similar such contracts and related contracts insofar as they pertain to the Oil and Gas Properties in this Agreement, (collectively referred to herein as the “Related Contracts”).
The interests of the Seller in the properties and interests specified in the foregoing subsections (a), (b), (c), (d), (e), (f) and (g) are herein sometimes collectively called the “Oil and Gas Properties,” and the interests of the Seller in the properties and interests specified in the foregoing subsections (a) through (g) are herein sometimes collectively called the “Assets.”
1.1Ownership of Production from the Oil and Gas Properties and Other Assets.
1.1.1Production Before June 1, 2019. Sellers will own all merchantable oil, gas, condensate and gas liquids (“Hyrdrocarbons”) from the oil and gas and as such before June 1, 2019. If, on the Closing Date, Hydrocarbons produced from the Oil and Gas Properties and Assets before June 1, 2019 are stored on
l:214051.33
the Oil and Gas Properties or represent unit stock tanks or are located within units gathering lines or production facilities upstream of the sale or custody transfer meters of the Seller or in connection with Hydrocarbon production from the Oil and Gas Properties, Buyer shall purchase from Seller the merchantable stock tank oil and/or gas above the pipeline connections in the stock tanks at the field posting price for such oil and or gas or such price being paid for production under any existing sales contract, of each such property existing as of the Effective Date, and any pipeline inventory at the mutually agreed upon market price of such inventory. Buyer will pay Seller for the stock tank oil and any pipeline inventory related thereto as an adjustment to the Purchase Price at Closing. The stock tank oil and pipeline inventories will be gauged and measured as of 7:00 a.m. local time where the Oil and Gas Properties and Assets may be located on the Effective Date. Seller and Buyer will accept the lease or unit operator’s tank gauge readings, meters, meter tickets or other inventory records of the stock tank oil and pipeline inventory.
1.1.2Production After June 1, 2019. Buyer will own all Hydrocarbons produced from the Oil and Gas Properties and Assets from and after June 1, 2019, assuming that the June 21, 2019 Closing Date occurs. However, all net proceeds shall be applied to any sale obligations including but not limited to any outstanding Notes. Subject to any continuing sale obligations under Related Contracts, Buyer may sell Hydrocarbons produced from the Oil and Gas Properties on and after the Closing Date as it deems appropriate.
2.Price for the Oil and Gas Properties. The Purchase Price to be paid by Buyer to Seller for the Oil and Gas Properties shall be Two Million Seven Hundred Thousand ($2,700,00.00) (the “Purchase Price”). The consideration of $2,700,000 shall be held in the form of a Two-Year Note paying No Interest. Seller acknowledges that Buyer, following Closing, may seek to enter into debt of equity facilities requiring registration and the need for audited financials relating to the Properties. Seller agrees to reasonably cooperate with Buyer is assisting the preparation of the necessary financial statements and to make its records and personnel available to assist Buyer at reasonable times and durations, given other demands Seller’s personnel may have in performing their own duties for Seller. Buyer agrees to reasonably compensate Seller for such work which compensation shall include reasonable costs of personnel and overhead associated with the work.
3.Representations of Seller. Seller represents to Buyer that:
(a)Seller is a limited liability company duly organized, legally existing, and in good standing under the laws of the State of Mississippi. Seller is qualified to do business and is in good standing at Closing.
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4
Exhibit 2.2 Barrister Purchase Agreement
(b)The Oil and Gas Properties and Assets shall be sold free and clear of all liens and interests
(c)Other than requirements (if any) that consents to assignment, or waivers of preferential rights to purchase, be obtained from third parties, and except for approvals (“Routine Governmental Approvals”) required to be obtained from governmental entities who are lessors under leases forming a part of the Oil and Gas Properties, or who administer such leases on behalf of such lessors, which are customarily obtained post-closing, or as otherwise set forth on Schedule 3(c), neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with the terms hereof, will result in any default under any agreement or instrument to which Seller is a party or by which the Assets are bound, or violate any order, writ, injunction, decree, statute, rule or regulation applicable to Seller or to the Assets.
(d)This Agreement and the Conveyance provided for herein to be delivered at Closing will, when executed and delivered, constitute the legal, valid, and binding obligation of Seller.
(e)Take-or-Pay Arrangements. The Oil and Gas Properties are not subject to any take or pay arrangements, advance payment or similar provision, whereby any party has the right to take production without full payment therefore, or at a reduced or prearranged price or to a call on production.
(f)New Well Operations. From June 1, 2019 until Closing, Seller shall not commence or consent to commencement of, and shall not elect to go non-consent in, any operation for the drilling of any new well or the fracing, recompletion, deepening, reworking, plugging back, plugging and abandonment or other operation with respect to any well, unit or lease constituting part of the Oil and Gas Properties, without the prior written consent of Buyer, which consent will not be unreasonably withheld. Buyer shall respond promptly to any written requests for such consent.
(g)Maintenance of Interest. Seller will use its best efforts from the date of this Agreement until Closing, to maintain and operate the Oil and Gas Properties in a reasonable and prudent manner, in full compliance with law and orders of any governmental authority, to maintain insurance now in force with respect to the Oil and Gas Properties, to pay when due all costs and expenses coming due and payable in connection with the Oil and Gas Properties, and to perform all of the covenants and conditions contained in the Related Contracts. Without the prior written consent of Buyer, which consent will not be unreasonably withheld, Seller will not: (i) develop, maintain or operate the Oil and Gas Properties in a manner inconsistent with prior operations or introduce any new method of operation or accounting with respect to the Oil and Gas Properties; (ii) enter into any new
l:214051.35
agreements or commitments with respect to the Oil and Gas Properties; (iii) incur any liabilities other than in the ordinary course for normal operating expenses on the Oil and Gas Properties; (iv) abandon, or consent to abandonment of, any producing, shut-in or injection well located on the Oil and Gas Properties, nor release or abandon all or any portion of the Oil and Gas Properties; (v) modify or terminate any of the Oil and Gas Properties or waive any right thereunder; (vi) encumber, sell or otherwise dispose of any of the Oil and Gas Properties other than personal property that is replaced with equivalent property or consumed in the ordinary course of operation of the Oil and Gas Properties and other than Hydrocarbons sold in the ordinary course of business; or (vii) enter into any new production purchase or sale agreement with a term greater than 30 days relating to the Oil and Gas Properties.
(h)Filings. Seller has timely and properly filed or caused to be filed all federal, state, local and foreign tax and information returns, and all reports, certificates and other instruments required by law.
(i)Operating Agreements. Except as disclosed to Buyer, as to any and all operating agreements affecting any of the Oil and Gas Properties, each of which operating agreements constitutes a Related Contract: (i) there are no outstanding calls, advances or payments that have been advanced on behalf of or are due from Seller or that Seller has committed to make that have not been paid, (ii) there are no operations with respect to which Seller is a non-consenting party, and (iii) except for an emergency, Seller will not authorize any expenditure after the date of this Agreement without first obtaining the written consent to such expenditure from Buyer, once selected as a Winning Bid, which consent will not be unreasonably withheld, conditioned or delayed
4.Representations of Buyer. Buyer represents to Seller that:
(a)Buyer is a company duly organized and legally existing and under the laws of the State of Mississippi, and is qualified to do business and in good standing in the state(s) in which the Assets are located where the laws of such state would require a corporation owning the Assets located in such state to qualify to do business.
(b)Buyer has full power to enter into and perform its obligations under this Agreement and has taken all proper action to authorize entering into this Agreement and performance of its obligations hereunder.
(c)Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with the terms hereof, will result in any default under any agreement or instrument to which Buyer is a party or by which the Assets are bound, or violate any order, writ, injunction, decree, statute, rule or regulation applicable to Buyer or to the Assets.
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6
Exhibit 2.2 Barrister Purchase Agreement
(d)This Agreement, when executed and delivered, constitute the legal, valid, and binding obligation of Buyer, enforceable in accordance with its terms, except as limited by bankruptcy or other laws applicable generally to creditor’s rights and as limited by general equitable principles.
(e)There are no pending suits, actions, or other proceedings in which Buyer is a party which affect the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(f)Buyer is a knowledgeable purchaser, owner, and operator of oil and gas properties, has the ability to evaluate oil and gas properties, and in fact has evaluated the Assets for purchase, and is acquiring the Assets based upon its own evaluation, and for its own account.
(g)With regard to those Assets which Buyer seeks to operate, Buyer is qualified to operate such Assets under the applicable laws, rules and regulations of the jurisdiction in which such Assets are located, or will become so qualified before operating such Assets.
5.Certain Covenants of Seller Pending Closing.
(a)Seller will give Buyer and its attorneys and other representatives access at all reasonable times to the Assets and, at Seller’s office, to Seller’s records pertaining to the ownership and/or operation of the Assets. Seller shall not be obligated to provide Buyer with access to any records or data which Seller considers to be proprietary or confidential to it or which Seller cannot legally provide to Buyer without, in its opinion, breaching, or risking a breach of, confidentiality agreements with other parties. Buyer recognizes and agrees that all materials made available to it (whether pursuant to this Section or otherwise) in connection with the transaction contemplated hereby are made available to it as an accommodation, and without representation or warranty of any kind as to the accuracy and completeness of such materials. Buyer waives and releases all claims against Seller, its parent or subsidiary companies or other affiliates, and its and their directors, officers, employees and agents, for injury to, or death of, persons or for damage to property arising in any way from the conduct of the investigations and examinations contemplated by this Section or the conduct of its employees, agents, or contractors in connection with such investigations and examinations (or the exercise of such rights of access). BUYER SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER, AND ITS PARENT OR SUBSIDIARY COMPANIES AND OTHER AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, CONTRACTORS, AND AGENTS (HEREINAFTER COLLECTIVELY REFERRED TO AS THE “Seller Group”), FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS, OR EXPENSES (INCLUDING, WITHOUT
l:214051.37
LIMITATION, COURT COSTS AND ATTORNEYS’ FEES), OR LIENS OR ENCUMBRANCES FOR LABOR OR MATERIALS ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH ACCESS, EXAMINATIONS, OR INSPECTIONS. THE FOREGOING RELEASE AND INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS, OR EXPENSES ARISE OUT OF (i) NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SINGLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE NEGLIGENCE, OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF SELLER OR ANY OTHER INDEMNIFIED PARTY, OR (ii) STRICT LIABILITY.
(b)Seller will continue the operation of the Assets in the ordinary course of its business. Where Seller is not the operator of an Oil and Gas Property, Seller will continue to act as a non-operator in the ordinary course of its business. Seller will not sell or dispose of any portion of the Assets without the prior consent of Buyer. Buyer has requested and seller has agreed to continue to operate the assets for up to twenty four (24) months or until such time as buyer has made the necessary arrangements for another operator.
(c)Seller will use reasonable efforts, consistent with industry practices in transactions of this type, to identify (i) all preferential rights to purchase and all rights that require consents to assignment be obtained which would be applicable to the transactions contemplated hereby, and (ii) the parties holding such rights. In attempting to identify the same, Seller shall in no event be obligated to go beyond its own records. Seller will request from the parties so identified (and in accordance with the documents creating such rights) waivers of the preferential rights to purchase and requirements that consents to assignment be obtained which were so identified. Seller shall have no obligation hereunder other than to so attempt to identify such preferential rights and requirements for consents to assignment and to so request such waivers, and shall in no event be under any obligation to obtain such waivers. Except to the extent that Buyer can establish that Seller failed to fulfill the obligations set forth above in this subsection, Buyer shall indemnify and hold Seller harmless from and against all claims, actions, liabilities, damages, losses, costs, or expenses, including, without limitation, court costs and attorney’s fees, whatsoever that arise out of the failure to obtain waivers of preferential rights to purchase or requirements for consents to assignment with respect to any transfer by Seller to Buyer of any part of the Assets and with respect to any subsequent transfers.
(d)Notwithstanding any other provision in this Section, (i) Seller may take any action prohibited by this Section if reasonably necessary under emergency conditions provided that Buyer is notified as soon as practicable thereafter; (ii) except to the extent that a Defect (as hereinafter defined) may result therefrom, Seller shall have no liability to Buyer for any incorrect payment of delay rentals, royalties, shut-in royalties, or similar payments or for any failure to make such payments; and (iii) Seller’s failure to comply with any of the requirements of this Section 5 shall not be deemed to be a default by Seller hereunder or grant to Buyer the right not to
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8
Exhibit 2.2 Barrister Purchase Agreement
close the transaction contemplated hereby, unless such failure has a material adverse effect upon the value of the Assets taken as a whole.
6.Due Diligence
(a)Due Diligence Investigation. Buyer shall, to the extent it deems appropriate, conduct, at its sole cost, risk, and expense, such examination or investigation as it may choose to conduct with respect to the Assets.
(b)As used in this Agreement, the term “Title Defect” shall mean any matter, other than a “Permitted Encumbrance” (as hereinafter defined), which causes one or more of the following to be a correct statement:
(i)Seller’s ownership of the Assets is such that, with respect to a well or unit listed on Exhibit A attached hereto, such ownership (a) is not sufficient to entitle it to receive its decimal share of the oil, gas and other hydrocarbons produced from, or allocated to, such well or unit which is at least that decimal share set forth on Exhibit A in connection with such well or (b) obligates it to bear its decimal share of the cost of operation of such well or unit greater than the decimal share set forth on Exhibit A in connection with such well or unit; or
(ii)Seller’s ownership of an Oil and Gas Property is subject to an outstanding mortgage, deed of trust, or other enforceable lien or encumbrance, or other adverse claim or imperfection in title; or
(iii)Seller has inaccurately represented the amount of any gas imbalances as to assets listed in Exhibit A.
(iv)Preferential rights exercise and consents and not contained title effects.
(c)As used herein, the term “Permitted Encumbrance” shall mean any and all of the following:
(i)The terms, conditions, restriction, exceptions, reservations, limitations, and other matters contained in the agreements, instruments, and other documents which create or reserve to Seller its interest in any Asset, provided that the same do not reduce the interest of Seller in the Asset affected thereby to less than that set forth on Exhibit A hereto;
(ii)Royalties, overriding royalties, division orders, reversionary interests, production payments, net profits interests, and similar burdens affecting any Oil and
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Gas Property if the net cumulative effect of such burdens does not operate to reduce the interest in the Asset affected thereby to less than the interest set forth beside the same on Exhibit A hereto;
(iii)Preferential rights to purchase and required third party consents to assignment and similar agreements with respect to which waivers or consents shall have been obtained from the appropriate parties, or the appropriate time period for asserting such rights shall have expired without an exercise of such rights;
(iv)Liens for taxes and assessments which are not yet delinquent or which are being contested by Seller in good faith;
(v)Rights existing under applicable laws (including without limitation statutory liens) or operating agreements or similar contracts to assert liens against the Assets, but not including liens and other rights which have actually been asserted, unless Seller disputes the validity of such liens or the amount claimed to be owed in connection therewith, or such lien or other right is not enforceable against the interest of Seller;
(vi)Conventional rights of reassignment requiring ninety (90) days or less notice to the holder of such rights;
(vii)Easements, rights-of-way, servitudes, permits, surface leases, and other rights in respect to surface operations, pipelines, logging, canals, ditches, reservoirs, or the like; conditions, covenants, or other restrictions; easements of streets, alleys, highways, pipelines, telephone lines, power lines, railways, and other easements or rights-of-way on, over or with respect of any Asset which does not materially and adversely affect the Asset affected thereby or its current use;
(viii)Any obligations or duties affecting an Asset to any municipality or public authority with respect to any franchise, grant, license, or permit and all applicable laws, rules, and order of any governmental authority;
(ix)All rights to consent by, required notices to, filings with, or other action by governmental entities in connection with the sale or conveyance of oil and gas leases, permits, or interests therein, if the same are customarily obtained contemporaneously with or subsequent to such sale or conveyance;
(x)Existing operating agreements, unit agreements, gas purchase contracts, and any and all other agreements which are customary in the oil and gas exploration, development, production, or extraction business or in the business of processing of gas and gas condensate, or production for the extraction of proper products therefrom, to the extent that the same do not reduce the interest of Seller in
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10
Exhibit 2.2 Barrister Purchase Agreement
the Asset affected thereby below that set forth on Exhibit A hereto; nor restrict or prohibit the sale or marketing of production.
(xii) Any other defect or imperfection in title which would customarily be waived by an ordinary person engaged in the business of owning and operating oil and gas properties;
(d)Title Defects. Should, as a result of such examinations and investigations, or otherwise, matters come to Buyer’s attention which Buyer believes would constitute Title Defects, Buyer shall notify Seller in writing of such Title Defects as soon as practicable, but in no event later than August 30, 2019. To be effective, Buyer’s notice of Title Defects (a “Title Defect Notice”) must include (i) a brief description of the matter constituting the Title Defect so asserted, (ii) the title opinion, other reports of experts, or other documentation on which Buyer’s assertion of a Title Defect is based, (iii) such supporting documents reasonably necessary for Seller to verify the existence of any such Title Defect, and (iv) Buyer’s estimate of the diminution in the value of the affected Asset resulting from such alleged Title Defect. In the event that Buyer notifies Seller of Title Defects, Seller (i) shall have the right (but not the obligation) to attempt to cure such Title Defects to the reasonable satisfaction of Buyer; or (ii) shall have the right to elect not to cure the Title Defect and adjust the Purchase Price.
7.Omitted.
8.Certain Covenants of Buyer Pending Closing. From and after the date of this Agreement, Buyer will give Seller and its attorneys and other representatives access at all reasonable times and upon reasonable notice for a period of seven (7) years from and after the Closing, to all files and records (including all computer records) delivered by or on behalf of Seller in connection with the transaction contemplated hereby, and shall permit Seller to make copies of any such files and records. Should the Assets be subsequently transferred by Buyer, Buyer agrees to take all action in its contractual arrangements relating to such transfer necessary to allow Seller to have continued access to all such files and records.
9.Conditions Precedent to the Obligations of Buyer. The obligations of Buyer under this Agreement are subject to each of the following conditions being met:
(a)Each and every representation of Seller under this Agreement shall be true and accurate in all material respects as of Closing except as to changes specifically contemplated by this Agreement or consented to by Buyer.
l:214051.311
(b)Seller shall have performed and complied in all material respects with (or compliance therewith shall have been waived by Buyer) each and every covenant, agreement, and condition required by the Court and this Agreement to be performed or complied with by Seller prior to or at the Closing.
(c)No suit, action, or other proceedings shall, on the date of Closing, be pending or threatened before any court or governmental agency seeking to restrain, prohibit, or obtain damages or other relief in connection with the consummation of the transactions contemplated by this Agreement.
10.Conditions Precedent to the Obligations of Seller. The obligations of Seller under this Agreement are subject to each of the following conditions being met:
(a)Each and every representation of Buyer under this Agreement shall be true and accurate in all material respects as of Closing except as to changes specifically contemplated by this Agreement or consented to by Seller.
(b)Buyer shall have performed and complied in all material respects with (or compliance therewith shall have been waived by Seller) each and every covenant, agreement, and condition required by the Court and this Agreement to be performed or complied with by Buyer prior to or at the Closing.
(c)No suit, action or other proceedings shall, on the date of Closing, be pending or threatened before any court or governmental agency seeking to restrain, prohibit, or obtain damages or other relief in connection with the consummation of the transactions contemplated by this Agreement.
11.Termination of Agreement.
(a)If any condition on the obligations of Buyer as set forth in Section 9 above is not met as of the Closing Date and Buyer is not in breach of its obligations hereunder, this Agreement may, at the option of Buyer, be terminated as of September 15, 2019. Upon such termination, the parties shall have no further obligations to one another hereunder (other than the obligations under Section 16 hereof and under Section 5(a) hereof, which will survive such termination).
(b)If any condition to the obligations of Seller as set forth in Section 10 is not met as of the Closing Date, or in the event the Closing does not occur on or before the Termination Date, and in either case Seller is not in breach of its obligations hereunder, this Agreement may, at the option of Seller, be terminated, and Seller shall retain any monies paid toward the Purchase Price as liquidated damages. Thereafter, the parties shall have no further obligations to one another hereunder (other than the obligations under Section 16 hereof and under Section 5(a) hereof, which will survive such termination).
l:214051.3
12
Exhibit 2.2 Barrister Purchase Agreement
(c)Upon the termination of this Agreement, whether pursuant to paragraph (a) or (b) above, Seller shall be free to sell the Assets (or any portion thereof) to any other party without any limitation under or by reason of this Agreement, unless at such time a condition of Seller Default shall exist. Buyer shall cooperate with Seller in effectuating any such sale and shall promptly execute any instrument evidencing the termination of Buyer’s right to acquire the Assets as may be reasonably requested by Seller. Buyer shall also immediately return to Seller all data and other information (and all copies thereof) furnished to Buyer by or on behalf of Seller in connection with this transaction.
12.The Closing. The closing (herein called the “Closing”) of the transaction contemplated hereby shall occur on June 21, 2019, at 10:00 a.m. Central Time, or at such other date and time as the Buyer and Seller may mutually agree upon, being herein called the “Closing Date”). At the Closing, Seller shall (a) execute, acknowledge and deliver to Buyer a conveyance of the Assets, (herein called the “Conveyance”), in the form attached hereto as Exhibit B, (and with Exhibit A hereto being attached thereto); however, under no circumstances shall the Buyer record the conveyance without the written consent of the Seller, effective as to runs of oil and deliveries of gas as of 7 o’clock a.m., Central Standard Time on June 1, 2019 (herein called the “Effective Date”); and (b) deliver to Buyer a release all Mortgages, if any, insofar as it covers the Assets; and turn over possession of the Assets;
and Buyer shall deliver to the Seller, (a) a duly executed Note pursuant to paragraph 2 herein above (b) with respect to the Assets operated by Seller, execute and deliver to Seller appropriate evidence reflecting change of operator as required by applicable authorities, and such evidence as Seller may require that Buyer is qualified with such authorities to succeed Seller as operator; and
Seller will deliver to Buyer the original records and other materials described in Section 1(f) above. With respect to each Oil and Gas Property with respect to which Seller is disbursing proceeds of production attributable to other parties entitled thereto, (i) Seller shall continue to collect proceeds of production during the month in which Closing occurs and shall be responsible for making disbursements, in accordance with its normal procedures (and at normal times), of such proceeds of production so collected to the parties entitled to same, with any proceeds of production thereafter collected by Seller to be promptly forwarded to Buyer (who shall thereafter account for same to the parties entitled thereto), (ii) Seller shall, as promptly as possible after Closing, deliver to Buyer (a) a copy of its “proceeds distribution list” for each such Asset (which proceeds distribution list shall include the name, address, social security number and applicable share of proceeds of production for each party to whom Seller is disbursing proceeds of production with respect to such Asset), (b) a list of all parties for whom it is holding in suspense proceeds of production, (c) a list of all parties for whom it is holding any advance payments made by other working interest owners for operations to be conducted on the Assets, and (d) a check (which shall be delivered within 30
l:214051.313
days after the end of the month in which Closing occurs) in an amount equal to all suspended funds and advance payments. Following delivery of the materials referred to in clause (ii), Buyer shall become responsible for all disbursements of proceeds of production (including suspense and other disbursements attributable to periods prior to the Effective Date) and such disbursement activities shall be included in the matters which Buyer assumes, and indemnifies Seller with respect to, under Section 14 below. It is understood and agreed that Seller does not represent or warrant to Buyer the accuracy of the “proceeds distribution lists” so delivered.
13.Omitted
14.Assumption and Indemnification.
(a) Buyer shall, on the date of Closing, timely pay and perform, all duties, obligations, and liabilities relating to the Assets including, without limitation, Seller’s ownership and operation of the Assets and the condition of the Assets, including all responsibilities and liabilities of Sellers under the Related Contracts, whether arising prior to, on, or after the Effective Date (including, without limitation, all obligations to properly plug and abandon, or replug and re-abandon, wells located on the Assets, to restore the surface of the Assets, and to comply with, or to bring the Assets into compliance with, Applicable Environmental Laws, including all liability and expense for any restoration, clean-up, disposal, or removal that may be incurred as a result of the existence or discovery of Hazardous Substances or other deleterious substances in, on, or under the Assets, regardless of when the events occurred that give rise to such condition).
(b) Buyer shall, on the date of Closing, RELEASE, INDEMNIFY, and HOLD the Seller Group HARMLESS from and against any and all claims, actions, liabilities, losses, damages, costs, or expenses (including court costs and attorneys’ fees) of any kind or character arising out of or otherwise relating to the Assets whether arising prior to, on, or after the Effective Date. Notwithstanding anything to the contrary herein seller shall retain the responsibility for and liability of any lawsuits existing as of the effective date, and shall hold buyer free and harmless from and against any such lawsuits.
(c)THE ASSUMPTION AND INDEMNIFICATION SET FORTH IN SUBSECTIONS (a) and (b) OF THIS SECTION SHALL APPLY WHETHER OR NOT SUCH DUTIES, OBLIGATIONS, OR LIABILITIES, OR SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS, OR EXPENSES ARISE OUT OF (i) NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SINGLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF SELLER OR ANY OTHER INDEMNIFIED PARTY, OR (ii) STRICT LIABILITY.
15.Disclaimer of Warranties. THE EXPRESS REPRESENTATIONS AND
l:214051.3
14
Exhibit 2.2 Barrister Purchase Agreement
WARRANTIES OF SELLER CONTAINED IN SECTION 3 (OR IN THE CONVEYANCE EXECUTED PURSUANT TO THIS AGREEMENT) ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITATION OF THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITH SPECIAL WARRANTY OF TITLE BY, THROUGH AND UNDER SELLER, BUT NOT OTHERWISE, AND WITHOUT ANY OTHER WARRANTY OR REPRESENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE CONDITION, QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO THE MODELS OR SAMPLES OF MATERIALS, OR MERCHANTABILITY OF ANY EQUIPMENT OR ITS FITNESS FOR ANY PURPOSE, AND, EXCEPT AS PROVIDED OTHERWISE IN THE FIRST SENTENCE OF THIS PARAGRAPH, WITHOUT ANY OTHER EXPRESS, IMPLIED, STATUTORY, OR OTHER WARRANTY OR REPRESENTATION WHATSOEVER. BUYER SHALL HAVE INSPECTED, OR WAIVED (AND UPON CLOSING SHALL BE DEEMED TO HAVE WAIVED) ITS RIGHT TO INSPECT THE ASSETS FOR ALL PURPOSES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND ENVIRONMENTAL CONDITION, BOTH SURFACE AND SUBSURFACE, INCLUDING, BUT NOT LIMITED TO, CONDITIONS SPECIFICALLY RELATED TO THE PRESENCE, RELEASE, OR DISPOSAL OF HAZARDOUS SUBSTANCES, SOLID WASTES, ASBESTOS OR OTHER MANMADE FIBERS OR NATURALLY OCCURRING RADIOACTIVE MATERIALS (“NORM”) IN, ON, OR UNDER THE ASSETS. BUYER IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE ASSETS, AND BUYER SHALL ACCEPT ALL OF THE SAME “AS IS, WHERE IS AND WITH ALL FAULTS.” WITHOUT LIMITATION OF THE FOREGOING, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY DATA REPORTS, RECORDS, PROJECTIONS, INFORMATION, OR MATERIALS NOW HERETOFORE, OR HEREAFTER FURNISHED OR MADE AVAILABLE TO BUYER IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION PRICING ASSUMPTIONS OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE ASSETS OR THE ABILITY OR POTENTIAL OF THE ASSETS TO PRODUCE HYDROCARBONS OR THE ENVIRONMENTAL CONDITION OF THE ASSETS OR ANY OTHER MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER BY SELLER OR BY SELLER’S AGENTS OR REPRESENTATIVES. ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION, AND OTHER MATERIALS (WRITTEN OR ORAL) FURNISHED BY SELLER OR OTHERWISE MADE AVAILABLE OR DISCLOSED TO BUYER ARE PROVIDED TO BUYER AS A CONVENIENCE AND SHALL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST SELLER, AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT BUYER’S SOLE RISK
l:214051.3
15
TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16.Commissions. Seller agrees to indemnify and hold harmless Buyer from and against any and all claims, obligations, actions, liabilities, losses, damages, costs or expenses (including court costs and attorneys fees) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by, or on behalf of, Seller with any broker or finder in connection with this Agreement or the transaction contemplated hereby. Buyer agrees to indemnify and hold harmless Seller from and against any and all claims, obligations, actions, liabilities, losses, damages, costs or expenses (including court costs and attorneys fees) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by, or on behalf of, Buyer with any broker or finder in connection with this Agreement or the transaction contemplated hereby.
17.Omitted
18.Casualty Loss. In the event of damage by fire or other casualty to the Assets prior to the Closing, then this Agreement shall remain in full force and effect, and (unless Buyer and Seller shall otherwise agree) in such event
(a)as to each such Asset so damaged which is an Oil and Gas Properties, then, (i) if there is no policy of insurance in force with respect to such Asset, such Asset shall be treated as if it had a Title Defect associated with it and the procedure provided for in Section 6 shall be applicable thereto, or (ii) if Seller should be entitled to make any claims under any insurance policy with respect to such damage, Seller shall, or assign and or pay over to Buyer, if assignable such claims, and
(b)as to each such Asset which is other than an Oil and Gas Properties, Seller shall, assign to Buyer, if assignable any and all insurance claims relating to such loss, and Buyer shall take title to the Asset affected by such loss without reduction of the Purchase Price (or, if applicable, Subgroup Price).
19.Notices. All notices and other communications required under this Agreement shall (unless otherwise specifically provided herein) be in writing and be delivered personally, by recognized commercial courier or delivery service (which provides a receipt), by telex or telecopier (with receipt acknowledged), during normal business hours or by registered or certified mail (postage prepaid), at the following addresses:
If to Seller:Central Operating, LLC
P.O. Box 2205
Laurel, MS 39442
Phone: (601) 426-9902
with a copy to:Stubblefield & Yelverton
1400 Meadowbrook Road, Suite 102
Jackson, Mississippi 39211
l:214051.3
16
Exhibit 2.2 Barrister Purchase Agreement
Phone: (601) 936-4910
If to Buyer:Barrister Energy, LLC
P.O. Box 125
Laurel, Mississippi 39441
Phone: (601) 426-0056
and shall be considered delivered on the date of receipt. Either Buyer or Seller may specify as its proper address any other post office address within the continental limits of the United States by giving notice to the other party, in the manner provided in this Section, at least ten (10) days prior to the effective date of such change of address.
20.Survival of Provisions. Except as expressly set forth in this Section 19, all of the representations, warranties, and covenants made by the Parties shall terminate on the Closing Date. Notwithstanding the foregoing, the representations, warranties, and covenants made by the Parties under Section 6 (to the extent the same are, by mutual agreement, not performed at Closing), and Sections 13, 14, 15, 16, 17, 19, 22, and 23 shall survive the Closing and the delivery of the Conveyance.
21.Operations. Subject to the terms and provisions of any existing agreements covering the Assets, Seller agrees to continue to operate on behalf of the buyer for up to 24 months after closing or until such time as buyer made other arrangements for another operator. Seller shall take all reasonable actions necessary to cause Buyer or Buyer’s operator to become operator as contemplated herein.
22.Miscellaneous Matters.
(a)After the Closing, Seller and Buyer shall execute and deliver, and shall otherwise cause to be executed and delivered, from time to time, such further instruments, notices, division orders, transfer orders and other documents, and do such other and further acts as reasonably may be necessary to more fully and effectively grant, convey and assign the Assets to Buyer.
(b)Except as provided in the following sentence, either party shall have the right to assign its rights under this Agreement and any such assignment in violation of this provision shall be void. Without consent of the other party, neither party may assign its rights under this Agreement to a direct or indirect parent of either party, to a direct or indirect subsidiary of either party, or to an entity that is a direct or indirect subsidiary of a direct or indirect parent of either party.
l:214051.3
17
(c)No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any provision of this Agreement (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
(d)To the extent applicable to the transaction contemplated hereby, or any portion thereof, Buyer hereby represents and warrants to Seller that Buyer (a) is in the business of seeking or acquiring, by purchase or lease, goods, or services, for commercial or business use, (b) has knowledge and experience in financial and business matters that enable it to evaluate the merits and risks of the transaction contemplated hereby and (c) is not in a significantly disparate bargaining position.
(e)In connection with Buyer’s evaluation of the Assets, Seller shall disclose to Buyer certain confidential information, which is proprietary, and includes, but is not necessarily limited to, geological and geophysical data; maps, models, and interpretations; and commercial, contractual, and financial information. All such data disclosed by Seller to Buyer shall hereinafter be referred to as the “Confidential Information” Buyer has entered into with Seller that certain Confidentially Agreement dated April 1, 2019 regarding this Confidential Information. If, for any reason the Closing does not occur, Buyer agrees that the prior existing Confidential Agreement will remain in effect as provided therein. In the event the closing does occur the prior Confidentially Agreement will terminate.
(i)Buyer may disclose the Confidential Information without Seller’s prior written consent only to the extent such information:
(a)is already known to Buyer as of the date of disclosure hereunder;
(b)is already in possession of the public or becomes available to the public other than through the act or omission of Buyer;
(c) is required to be disclosed under applicable law or by a governmental order, decree, regulation, or rule (provided that Buyer shall give written notice to Seller prior to such disclosure); or
(d)is acquired independently from a third party that has the right to disseminate such information at the time it is acquired by Buyer.
(ii)Buyer may disclose the Confidential Information without Seller’s prior written consent to an Affiliated Company (as hereinafter defined), provided that Buyer guarantees the adherence of such Affiliated Company to the terms of this Agreement. “Affiliated Company” shall mean any company or legal entity that (a) controls either directly or indirectly a party, or (b) that is controlled directly or indirectly by such party, or (c) is directly or indirectly controlled by a company or entity that directly or indirectly controls such party. “Control” means the right to
l:214051.3
18
Exhibit 2.2 Barrister Purchase Agreement
exercise fifty percent (50%) or more of the voting rights in the appointment of the directors of such company.
(iii)Buyer shall be entitled to disclose the Confidential Information without Seller’s prior written consent to such of the following persons who have a clear need to know in order to evaluate Seller’s petroleum exploration and production rights:
(a)employees, officers, and directors of Buyer;
(b)employees, officers, and directors of an Affiliated Company;
(c)any professional consultant or agent retained by Buyer for the purpose of evaluating the Confidential Information.
(iv)Prior to making any such disclosures to persons under subparagraph 21.e.(iii)(c) above, however, Buyer shall obtain an undertaking of confidentiality, in the same form and content as this Agreement, from each such person.
(v)Buyer and its Affiliated Companies, if any, shall use, or permit the use of the Confidential Information disclosed under Section 22.(e)(ii) or 22.(e)(iii) above, only to evaluate petroleum exploration and production rights held by Seller.
(vi)Buyer shall be responsible for ensuring that all persons to whom the Confidential Information is disclosed under this Agreement shall keep such information confidential and shall not disclose or divulge the same to any unauthorized person. Neither party shall be liable in an action initiated by one against the other for special, indirect, or consequential damages resulting from or arising out of this Agreement, including, without limitation, loss of profit or business interruptions, however same may be caused.
(vii)The Confidential Information shall remain the property of Seller, and Seller may demand the return thereof at any time upon giving written notice to Buyer. Within ten (10) days of receipt of such notice, Buyer shall return all of the original Confidential Information and shall destroy all copies and reproductions (both written and electronic) in its possession and in the possession of persons to whom it was disclosed pursuant to Sections 22.(e)(ii) and 22.(e)(iii) hereof.
(viii)The term of this Section 22.(e) and the rights and obligations created hereunder shall commence upon the date hereof and shall continue for a period of two (2) years thereafter.
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19
(ix)Seller makes no representations or warranties, express or implied, as to the quality, accuracy, and completeness of the Confidential Information disclosed hereunder. Seller and its Affiliated Companies, and their officers, directors, employees, shall have no liability whatsoever with respect to the use of or reliance upon the Confidential Information by Buyer.
(f)This Agreement and that certain Confidentiality Agreement dated April 1, 2019 between Seller and Buyer contain the entire understanding of the parties hereto with respect to the subject matter hereof and supersede all prior agreements, understandings, negotiations, and discussions among the parties with respect to such subject matter between Seller and Buyer. The headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. Within this Agreement, words of any gender shall be held and construed to cover any other gender, and words in the singular shall be held and construed to cover the plural, unless the context otherwise requires. Time is of the essence in this Agreement.
(g)This Agreement may be amended, modified, supplemented, restated, or discharged (and provisions hereof may be waived) only by an instrument in writing signed by the party against whom enforcement of the amendment, modification, supplement, restatement, or discharge (or waiver) is sought, or by order of the Court where the party against whom enforcement of any provision has been given notice and the opportunity to file objection.
(h)Each party shall bear and pay all expenses it incurred in connection with the transaction contemplated by this Agreement.
(i)This Agreement shall be binding on the parties hereto and their respective successors and assigns.
(j)This Agreement shall not confer any rights or remedies upon any person other than Seller and Buyer and their respective successors and permitted assigns.
(k)All production from oil and gas wells, and all proceeds from the sale thereof, including proceeds from the sale of any oil in storage above the pipeline connection, and any accounts receivable balances, funds held in suspense or escrow, any of which are attributable to production prior to the Effective Date, shall be the property of Seller. All production from oil and gas wells, and all proceeds from the sale thereof attributable including proceeds from the sale from any oil in storage above the pipeline connection, and any accounts receivable balances, funds held in suspense or escrow, any of which are attributable to production after the Effective Date shall be the property of Buyer.
l:214051.3
20
Exhibit 2.2 Barrister Purchase Agreement
(l)This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. It shall not be necessary for both parties to sign the same counterpart.
(m)Upon satisfaction of any and all debt obligation of Buyer, if any, Buyer shall properly execute, acknowledge and file the Conveyance for record immediately upon receipt thereof and will furnish to Seller a copy of the recorded document promptly after Buyer’s receipt of such recorded instrument from the clerk in the county or parish in which the Conveyance is recorded. In addition, where applicable, Buyer shall execute any forms required to effect a change of operator for all wells conveyed herein.
(n)Prior to closing, Buyer shall not issue any publicity or press release concerning this Agreement or the transaction contemplated hereby without the prior written consent of Seller, unless, in the written opinion of legal counsel acceptable to Seller, such disclosure is required by applicable law or other applicable rules or regulations of any governmental authority or stock exchange and such publicity or press release contains no more than the minimum information necessary to comply therewith. This provision shall not replace or restrict any provision in any prior agreement between the parties affecting confidentiality or the disclosure of information about the Assets.
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21
Exhibit 2.2 Barrister Purchase Agreement
IN WITNESS WHEREOF, this Agreement is executed by the parties hereto on the date set forth above.
SELLER: BUYER:
Central Operating, LLC Barrister Energy, LLC
By: /s/ Peter J Biglane By: /s/ Andrew S. Cardwell
Name: Peter J Biglane Name: Andrew S. Cardwell
Title: Member/Manager Title: Member/Manager
l:214051.3
22
Exhibit 2.2 Barrister Purchase Agreement
EXHIBIT “A”
ATTACHED TO AND MADE A PART OF THAT CERTAIN ASSIGNMENT DATED EFFECTIVE JUNE 1, 2019, BY AND BETWEEN CENTRAL OPERATING, LLC, AS ASSIGNOR, AND BARRISTER ENERGY, LLC, AS ASSIGNEE.
Southwest Excel Field leases
Lessor:MOSLEY, MARREL CLIFTON
Lessee:WALTER L JOHNSON
Dated:AUGUST 11, 1993
Recorded:BOOK 486 PAGE 273
Lessor:NALL, ALFRED E
Lessee: WALTER L JOHNSON
Dated:AUGUST 10, 1993
Recorded: BOOK 486 PAGE 276
Lessor:EXCEL, TOWN OF
Lessee: WALTER L JOHNSON
Dated:AUGUST 18, 1993
Recorded: BOOK 486 PAGE 320
Lessor:JETER, JAMES H ET UX
Lessee:WALTER L JOHNSON
Dated:AUGUST 10, 1993
Recorded:BOOK 486 PAGE 279
Lessor:HOLDER, WILLA DEAN H
Lessee:WALTER L JOHNSON
Dated:JULY 16, 1993
Recorded:BOOK 486 PAGE 282
Lessor:MOSLEY, GEORGE EDWARD ET U
Lessee:WALTER L JOHNSON
Dated:AUGUST 10, 1993
Recorded:BOOK 486 PAGE 284
Lessor:NETTLES, JEFF
Lessee:WALTER L JOHNSON
Dated:AUGUST 11, 1993
Recorded:BOOK 486 PAGE 287
l:214051.3
23
Lessor:NETTLES, ANN B ET VIR
Lessee:WALTER L JOHNSON
Dated:AUGUST 11, 1993
Recorded:BOOK 486 PAGE 290
Lessor:CHAVERS, MILDRED E
Lessee:WALTER L JOHNSON
Dated:JULY 20, 1993
Recorded:BOOK 486 PAGE 296
Lessor:ZION REST CHURCH
Lessee:WALTER L JOHNSON
Dated:AUGUST 4, 1993
Recorded:BOOK 486 PAGE 300
Lessor:MANNING, BETTY C ET VIR
Lessee:WALTER L JOHNSON
Dated:JUNE 21, 1993
Recorded:BOOK 491 PAGE 67
Lessor:COLEMAN, JAMES C ET UX
Lessee:WALTER L JOHNSON
Dated:JUNE 23, 1993
Recorded:BOOK 491 PAGE 65
Lessor:BYRD, ARTHURINE ET AL
Lessee:WALTER L JOHNSON
Dated:AUGUST 10, 1993
Recorded:BOOK 486 PAGE 304
Lessor:MURPHY, MAX H ET UX
Lessee:WALTER L JOHNSON
Dated:SEPTEMBER 15, 1993
Recorded:BOOK 486 PAGE 312
Lessor:KIRKLAND, REO JR
Lessee:WALTER L JOHNSON
Dated:SEPTEMBER 21, 1993
Recorded:BOOK 486 PAGE 315
Lessor:MELTON, H GERALD ET UX
Lessee:WALTER L JOHNSON
Dated:MAY 2, 1994
Recorded:BOOK 502 PAGE 289
Lessor:SCRUGGS, BILLY L ET UX
Lessee:W. B. DICKERSON JR
DAL:214051.2
-24-
Exhibit 2.2 Barrister Purchase Agreement
Dated:JUNE 8, 1992
Recorded:BOOK 440 PAGE 183
Lessor:JOHNSON, JERRY
Lessee:WALTER L JOHNSON
Dated:AUGUST 3, 1995
Recorded:BOOK 523 PAGE 225
Lessor:JOHNSON, MELVIN D
Lessee:WALTER L JOHNSON
Dated:AUGUST 3, 1995
Recorded:BOOK 523 PAGE 227
Lessor:BROWN, JEFFREY L ET AL
Lessee:WALTER L JOHNSON
Dated:AUGUST 3, 1995
Recorded:BOOK 523 PAGE 238
Lessor:CHAMPION INTERNATIONAL CO
Lessee:ENERGY DEVELOPMENT
Dated:JANUARY 15, 1995
Recorded:BOOK 526 PAGE 94
Lessor:INTERNATIONAL PAPER CO
Lessee:ENERGY DEVELOPMENT
Dated:DECEMBER 27, 1994
Recorded:BOOK 527 PAGE 98
Lessor:RUDY RESOURCES LIMITED PA
Lessee:ENERGY DEVELOPMENT
Dated:JANUARY 15, 1995
Recorded:BOOK 529 PAGE 06
Lessor:SCOTT PAPER COMPANY
Lessee:ENERGY DEVELOPMENT
Dated:JANUARY 15, 1995
Recorded:BOOK 529 PAGE 08
Lessor:CHAVERS, MILDRED E
Lessee:FINA OIL & CHEMICAL
Dated:APRIL 18, 1991
Recorded:BOOK 407 PAGE 304
l:214051.3
5-25-
Lessor:SILCOX, SHANE
Lessee:FINA OIL & CHEMICAL
Dated:APRIL 18, 1991
Recorded:BOOK 407 PAGE 301
Lessor:MOSLEY, ISABELLE L ET AL
Lessee:FINA OIL AND CHEMICAL
Dated:APRIL 18, 1991
Recorded:BOOK 407 PAGE 296
Lessor:MURPHY, EVELYN JONES ET VI
Lessee:WALTER L. JOHNSON
Dated:SEPTEMBER 15, 1995
Recorded:BOOK 561 PAGE 89
DAL:214051.2
-26-
Exhibit 2.2 Barrister Purchase Agreement
ALPX.16.011.LSE | H. Gerald Melton | OxPatch Resources, LLC | 3/16 | 78.6000 Page 303, Book 804 AL | MONROE | 16 | 5N | 7E | E2 SW,Less & except a parcel,see |
ALPX.16.012.LSE | Billy Scruggs et u | OxPatch Resources, LLC | 3/16 | 80.0000 Page 528, Book 803 AL | MONROE | 16 | 5N | 7E | N2 SE |
ALPX.16.013.LSE | L.T. Wiggins et ux | OxPatch Resources, LLC | 3/16 | 1.0000 AL | MONROE | 16 | 5N | 7E | SE corner of N2 of SENE |
ALPX.17.001.LSE | W.J. Martin, Jr. | OxPatch Resources, LLC | 3/16 | 80.0000 Page 399, Book 802 AL | MONROE | 17 | 5N | 7E | NE1/4 OF SW1/4;and SE1/4 of NW1/4 |
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ALPX.17.002.LSE | Edward Nelson M | OxPatch Resources, LLC | 3/16 | 71.3300 Page 396, Book 802 AL | MONROE | 20 | 5N | 7E | N1/3 NWNE;N1/3 NENW;E1/2NENE S1/3 SWSE;S1/3 SESW Less 2 acres in SW corner |
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ALPX.17.003.LSE | Annabel J. White, | OxPatch Resources, LLC | 3/16 | 133.2200 Page 401, Book 802 AL | MONROE | 17 | 5N | 7E | SENE & NESE & N2 SESE Less tracts;see full description on lease. |
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| 20 | 5N | 7E | Metes & Bounds Tract,see lease for full description. |
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| W2 SWNE Less 3 ac;also |
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| 21 | 5N | 7E | W2 NWSE,see lease for complete description. |
ALPX.17.006.LSE | Hazel Norris | OxPatch Resources, LLC | 3/16 | 89.3700 Page 409, Book 802 AL | MONROE | 17 | 5N | 7E | SWSW Less 2 Tracts;N2/3 SWSE Less tract & N 2/3 SESW |
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ALPX.17.007.LSE | Bennie C. Norris | OxPatch Resources, LLC | 3/16 | 1.0000 Page 412, Book 802 AL | MONROE | 17 | 5N | 7E | Metes & Bounds Tract in SWSW |
ALPX.17.008.LSE | Danny L. Everette | OxPatch Resources, LLC | 3/16 | 1.0000 Page 414, Book 802 AL | MONROE | 17 | 5N | 7E | Metes & Bounds Tract in SWSW |
ALPX.17.009.LSE | Garilyn Blanton | OxPatch Resources, LLC | 3/16 | 1.6300 Page 416, Book 802 AL | MONROE | 17 | 5N | 7E | Metes & Bounds Tract in SWSW |
ALPX.17.010.LSE | Annabel Wallet v | OxPatch Resources, LLC | 3/16 | 3.0000 Page 418, Book 802 AL | MONROE | 17 | 5N | 7E | Metes & Bounds Tract in NESE |
ALPX.20.001.LSE | Marlene B. Grissette | OxPatch Resources, LLC | 3/16 | 27.0000 AL | MONROE | 20 | 5N | 7E | 27 ac tract in SW cor of NENW,NWNW |
ALPX.20.002.LSE | Roger W. Bayles, | OxPatch Resources, LLC | 3/16 | 9.5000 AL | MONROE | 20 | 5N | 7E | 9.5 acs start SE corner of W2 of NENE |
ALPX.21.001.LSE | Audry O. Melton e | OxPatch Resources, LLC | 3/16 | 45.5900 AL | MONROE | 21 | 5N | 7E | 9.59 ac tract in NENE |
l:214051.3
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| 21 | 5N | 7E | NENW less two tracts |
ALPX.21.002.LSE | Brenda Andrews | OxPatch Resources, LLC | 3/16 | 2.7800 AL | MONROE | 21 | 5N | 7E | 2.78 ac tract in S2 of NENW |
ALPX.21.003.LSE | Deanna Andrews | OxPatch Resources, LLC | 3/16 | 0.8700 AL | MONROE | 21 | 5N | 7E | .87 ac tract in NE corner NENW |
ALPX.21.004.LSE |
Mitchell W. Jordan |
OxPatch Resources, LLC |
3/16 |
38.7100 Page 404, Book 802 AL |
MONROE |
21 |
5N |
7E |
E2 SWNE Less 3 ac; also |
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| E2 NWSE;see lease for complete description. |
ALPX.21.005.LSE | Alfred E. Nall,Life | OxPatch Resources, LLC | 3/16 | 40.0000 AL | MONROE | 21 | 5N | 7E | NWNE |
ALPX.21.006.LSE | Alfred E, Nall, Jr., | OxPatch Resources, LLC | 3/16 | 33.0000 AL | MONROE | 21 | 5N | 7E | S2 NENE Less 50' strip across NS of SWNENE; |
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| NENENE; 50' strip across |
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| NS of NWNENE |
ALPX.21.007.LSE | Louise B. Melton | OxPatch Resources, LLC | 3/16 | 33.0000 AL | MONROE | 21 | 5N | 7E | S2 NENE Less 50' strip across NS of SWNENE; |
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| NENENE; 50' strip across NS of NWNENE |
TOWNSHIP 5 NORTH, RANGE 7 EAST
WELLBORES AND EQUIPMENT:
Southwest Excel Field wells |
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Permit | API | Well Name |
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| Date | Section | Twp | Twp | Rng | Rng | DU Desc | County | Well |
Approved | Num | Dir | Num | Dir | Type | ||||||||
10904-SW | D-0-1099200000000 | NALL 16-6 #1 |
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| 5/30/2000 | 16 | 5 | N | 7 | E |
| Monroe | SWD |
10604-B-1 | 1099200000000 | NALL 16-3 #1 ST |
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| 4/18/1996 | 16 | 5 | N | 7 | E | SW/4 SE/4, SE/4 SW/4 S9 & NW/4 NE/4, NE/4 NW/4 S16 SEE PLAT FOR ADDITONAL 12- ACRE TRACT ADDED BY #96- 121 | Monroe | OIL |
10960 | 1099200000000 | NETTLES 9-12 #1 |
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| 12/8/1995 | 9 | 5 | N | 7 | E | S/2NW/4 & N/2SW/4 SEE PLAT FOR ADDITIONAL 48- ACRE TRACT ADDED BY 96-104 | Monroe | OIL |
10904 | 1099200000000 | NALL 16-6 #1 |
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| 8/29/1995 | 16 | 5 | N | 7 | E |
SE/4 NW/4, NE/4 SW/4, SW/4 NE/4, NW/4 SE/4 | Monroe | OIL |
DAL:214051.2
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Exhibit 2.2 Barrister Purchase Agreement
EXHIBIT B
ASSIGNMENT OF HYDROCARBON PRODUCTION REVENUES
(Producing Properties)
STATE OF ALABAMA | § |
| § |
COUNTY OF MONROE | § |
This Assignment ("Assignment") is made by the following parties on June 1, 2019 (“Effective Date”)
FROM: | Central Operating, LLC, a Mississippi limited liability company, whose address is P.O. Box 2205, Laurel, Mississippi 39442 (herein called, “Assignor”) |
TO: | Barrister Energy, LLC, a Mississippi limited liability company, whose address is P.O. Box P.O. Box 125, Laurel, Mississippi 39441 (herein called, “Assignee”). |
A. For and in consideration of One Hundred Dollars ($100.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed by the Assignor, Assignor does hereby convey, assign, transfer, set over and deliver unto Assignee and Assignee’s successors in title and assigns, effective as of 7:00 a.m., Central Standard Time, on June 1, 2019, (the “Effective Date”), the following:
All of Assignor’s rights, titles and interests in and to all of the net revenues derived from the production or extraction or sale or other commercial exploitation of any kind whatsoever of the crude oil, petrochemicals, natural gas, salts, water, minerals and other commercially valuable raw materials (collectively, “Raw Materials”) taken from or produced from or located on the properties described in Exhibit “A” hereof, which lands are located in Monroe County, State of Alabama (the “Lands”), and which assignment is subject to a certain Purchase and Sale Agreement of the same date between the parties. For purposes of this Assignment, the term “net revenues” means the gross revenues received for or from the sale, transfer, other disposition, leasing, production, extraction, assignment or other commercial exploitation of any and all Raw Materials from the Lands hereof, LESS the following costs and fees (collectively, “Costs”): (a) any fees and costs charged by a manager, and as allowed or authorized, under any management agreement for managing the Lands as a producer of Raw Materials; (b) other direct and usual and customary production or commercial exploitation expenses that are reasonably necessary to produce any revenues from the Raw Materials and are within applicable fair market ranges; (c) storage and transportation costs; and (d) all
l:214051.3
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governmental fees (including environmental compliance costs) charged for the commercial exploitation or transportation or storage of the Raw Materials.
B. Purposely omitted
C. This Assignment from Assignor to Assignee is expressly made subject to:
(1) the covenants, provisions, royalties and terms of the Leases existing prior to the Effective Date, if any;
(2) the terms and conditions of all existing orders, rules and regulations and ordinances of federal, state and other governmental agencies having jurisdiction;
(3) any contracts, other than Leases, affecting or applicable to the Lands;
(4) any valid and subsisting oil, casinghead gas and gas sales, purchase, exchange and processing contracts and agreements, insofar and only insofar as the same are appurtenant or relate to the Leases;
(5) a proportionate part of all overriding royalty interests, restrictions, exceptions, reservations, burdens, encumbrances, conditions, limitations, interests, instruments, agreements and other matters, if any, which are of record in the state and county above named and which burden or affect the properties, rights or interests herein assigned; and
(6) the orders, rules, regulations, ordinances, instruments, burdens, encumbrances, reservations and terms and conditions listed in Sections A. and B. of this Assignment, to the extent the same are valid and enforceable and apply to the Lands and interests described above, are referred to in this Assignment as “Existing Burdens”;
(7) the terms and provisions of that certain Purchase and Sale Agreement, dated June 1, 2019;
D. Governing Law. THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSISSIPPI WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS OTHERWISE APPLICABLE TO SUCH DETERMINATIONS. ALL OF THE PARTIES CONSENT TO THE EXERCISE OF JURISDICTION IN PERSONAM BY THE COURTS OF THE STATE OF MISSISSIPPI FOR ANY DISPUTE. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE.
E. Miscellaneous.
(1) Operating Agreement. This Assignment is subject to the Operating Agreement.
DAL:214051.2
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Exhibit 2.2 Barrister Purchase Agreement
(2) Successors and Assigns. This Assignment shall bind and inure to the benefit of the Assignor or Assignee and their respective successors and assigns.
(3) Counterparts. This Assignment may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all of such counterparts shall constitute for all purposes one agreement.
(4) Additional Documents: Assignor agrees to execute, to acknowledge and to deliver to Assignee any additional instruments, notices, division orders, transfer orders and other documents and to do any other acts and things which may be necessary to more fully and effectively assign and convey to Assignee and Assignee’s successors in title the Assets intended to be assigned and conveyed hereby.
(5) Entire Agreement. This Assignment may only be amended by a written amendment signed by all parties.
EXECUTED as of the acknowledgement but effective as of the Effective Date.
ASSIGNOR:
CENTRAL OPERATING, LLC, a Mississippi limited liability company
By:_/s/Peter J. Biglane___
Title: Member/Manager
l:214051.3
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DAL:214051.2
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Exhibit 2.3 Barrister Promissory Note
ISSUE DATE: June 1st, 2019LENDER: Central Operating, LLC
PRINCIPAL SUM: $ 2,700,000
LENDER ADDRESS: P.O. Box 2205, Laurel, MS 39442
Barrister Energy, LLC
P.O. Box 125
Laurel, MS 39441
AMENDED SECURED PROMISSORY NOTE
This Secured Promissory Note (the “Note”) shall be secured by retention of the Oil & Gas Assets in Exhibit A.
WHEREAS, Barrister Energy, LLC, previously executed a Promissory Note dated June 1, 2019, in favor of Central Operating, LLC;
AND WHEREAS, said Promissory Note was only executed by Manager/Member of Barrister Energy, LLC, Andrew Cardwell.
AND WHEREAS, in order to comply with terms and conditions of the controlling Operating Agreement of Barrister Energy, LLC, (specifically Article 5.2 of the Revised Limited Liability Company Agreement) it is necessary that all Members of Barrister Energy, LLC execute this Note as it exceeds the $1 million threshold established in Article 5.2 of said Agreement.
AND WHEREAS, the terms and conditions of the previously executed Secured Promissory Note remain unaltered in substance. The effective date of this Amended Secured Promissory Note remains June 1, 2019, and the maturity date remains 24 months from same.
1.PROMISE TO PAY.
1.1Promise to Pay. FOR VALUE RECEIVED, Barrister Energy, LLC, a Mississippi corporation with a principal place of business at P.O. Box 125, Laurel MS 39441 (the “Borrower”), irrevocably and unconditionally promises to pay to the order of Lender (named above) the Principal Sum with interest at the rate of 0% per annum on the Principal Sum. Borrower shall pay the Principal Sum and accrued interest outstanding to the Lender in lawful money (or other consideration as Lender deems appropriate) of the United States of America at the address of the Lender set out above or such other address as the Lender designates by written notice to Borrower prior to the payment being made. This Note is part of a series of notes being offered by Borrower (the “Note”). The holder of the Note shall be referred to as the “Lender.” This Note is and shall be deemed an unconditional obligation of the Borrower (and of its subsidiaries) for the payment of money (or other consideration as Lender deems appropriate) and may be enforced, among other remedies, by summary proceeding or similar action in the jurisdiction(s) where enforcement is sought, as well as by any other enforcement or action at law or in equity permissible by law.
1.2The Note.
(a)Maturity. Principal shall be paid on the 24th month from the signing of this agreement, the “Maturity Date”) unless accelerated or paid earlier.
1
(b)Secured Assets. This Note is a secured note and debt obligation of the Borrower and secured by the retention of title by Lender to certain oil and gas assets in Exhibit A.
1.3Prepayment. This Note may be pre-paid in whole (or in part) at any time.
2.Absolute Obligation; Ranking; Security; Other Rights.
2.1 This Note is a direct and unconditional debt obligation of the Company. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, this Note at the time, place, and rate, and in the coin or currency, herein prescribed.
2.2In addition to the rights and remedies given it by this Note, the Holder shall have all those rights and remedies allowed by applicable laws. The rights and remedies of the Holder are cumulative and recourse to one or more right or remedy shall not constitute a waiver of the others. The Borrower and each subsidiary hereby waives presentment, demand or notice of dishonor with respect to the obligations of this Note.
3.Default.
3.1Event of Default. It shall be an Event of Default (each event being called an “Event of
Default”) hereunder if:
(a)the Borrower fails to make the principal when due hereunder or on the Maturity Date and such nonpayment continues for five (5) business days after written notice thereof to the Borrower by the Administrator (defined below);
(b)an order is made for the winding-up of the Borrower or any of its subsidiaries; a petition is filed by or against the Borrower or any subsidiary; an assignment for the benefit of creditors is made by the Borrower or any subsidiary; a receiver or agent is appointed in respect of the Borrower or any subsidiary under any bankruptcy or insolvency legislation, or by or on behalf of a secured creditor of the Borrower or any subsidiary; or an application is made under the United States Bankruptcy Code or any successor or similar legislation;
(c)the Borrower or any Subsidiary ceases to carry on its business or disposes (whether by license, lease, sale, settlement, encumbrance or otherwise) of substantially all of its assets other than in the ordinary course of its business; or
(d)the Borrower or any Subsidiary commences any corporate proceedings for its dissolution or liquidation.
This Note and the repayment hereof are secured and collateralized by certain oil and gas assets in Exhibit A. More specifically, Lender shall retain title to the assets contained on Exhibit A, but assign the revenues from same, until such time as the Note is satisfied in full. Upon which, Lender will transfer title to Borrower.
3.2 Remedies Upon Event of Default and Acceleration. Upon the occurrence of a Default, the Lender and or its assigns shall immediately retain title to all the oil & gas assets in Exhibit A.
4.Covenants and Warranties of Borrower.
4.1Maximum Payments. Nothing herein shall be deemed to require that the Borrower pay any interest or make any payment that exceeds the maximum amount permissible by law.
4.2Neither the Borrower nor any Subsidiary (currently existing or hereinafter created) may (i) borrow funds, incur or increase indebtedness or credit, or grant an encumbrance or lien to any person that is senior in any way to the Notes in respect of payment, priority or preference, or (ii) modify any existing debt or encumbrance in materially adversely affect the rights of the Note holder (by way of example only and without limitation, increasing the amount of existing senior debt, or changing or modifying rights of other existing creditors or lien holders that would in any material respect reduce the security interest or rights of the Note holders).
5.GENERAL.
5.1 Ownership of Note. Borrower may transfer or assign this Note with the consent and notice of the Lender, in accordance with all applicable laws and regulations, which consent may not be unreasonably withheld.
5.2 Notice and Other Instruments. All notices, reports or other documents and communications that are required or permitted to be given to the Parties under this Agreement shall be sufficient if given in writing and delivered in person, by email, by overnight courier, or by registered or certified mail, postage prepaid, return receipt requested, to the receiving Party at the address listed on the first page of this Note or to such other address as such Party may have given to the other by written notice pursuant to this Section. Notice shall be deemed given on the date of delivery, in the case of personal delivery or confirmed receipt email, or on the delivery or refusal date, as specified on the return receipt, in the case of overnight courier or registered or certified mail.
5.3 Governing Law. This Note and the rights, remedies, powers, covenants, duties and obligations of the parties herein will be construed in accordance with and governed by the laws of the State of Mississippi and the federal laws of the United States.
5.4 Severability. Should any one or more of the provisions hereof be determined to be illegal or unenforceable, all other provisions hereof shall be given effect separately therefrom and shall not be affected thereby. To the extent that a court determines that any provision herein is unreasonable in light of the circumstances, the court shall revise such provision in a manner that the court determines to be reasonable and to most clearly implement the intention of this Note and the Agreement.
5.5 Binding on Successors. This Note will inure to the benefit of and be binding upon each of the parties and their respective heirs, executors, administrators, successors, and permitted assigns.
5.6 Amendment and Waiver. This Note may not be amended, waived, discharged or terminated except by a document executed by the party against whom enforcement of the amendment, waiver, discharge or termination is sought.
5.7 Execution and Authority. The undersigned executing this Note on behalf of the Borrower and delivering it to the Lender hereby represents and warrants that he does so with all corporate authority of the Borrower.
[Signature Pages Follow]
Member Name: Roger McLeod
Signature:_/s/ Roger McLeod_______________________________________
Date of Signature: May 14, 2020
Member Name: Jeffrey Delancey
Signature:_/s/ Jeffrey Delancey_________________________________________
Date of Signature: May 14, 2020
Member Name: Lamar Resources, LLC, a limited liability company organized under the laws of the State of Texas (beneficial owner – Marty Rutland)
Signature:_/s/ Marty Rutland_____________________________________
Date of Signature: May 14, 2020
Member Name: Andrew Cardwell
Signature:_/s/ Andrew Cardwell_________________________________________
Date of Signature: May 14, 2020
ASSIGNMENT AND ASSUMPTION OF PROMISSORY NOTE
THIS ASSIGNMENT, ASSUMPTION, AND AMENDMENT OF PROMISSORY NOTE (this “Assignment”) dated June
16, 2020, is made and executed by and among BARRISTER ENERGY, LLC, a Mississippi limited liability company, whose mailing/notice address is P.O. 125, Laurel, Mississippi 39441 (referred to herein as “Assignor”), COJAX OIL AND GAS CORPORATION, a Virginia corporation, whose mailing/notice address is 3033 Wilson Blvd., Suite E-605, Arlington, VA 22201 (referred to herein as “Assignee”), and CENTRAL OPERATING, LLC, a Mississippi limited liability company, whose mailing/notice address is P.O. Box 2205, Laurel, MS 39442 (referred to herein as “Lender”).
RECITALS.
A.Pursuant to the terms of that certain Promissory Note executed by Assignor in favor of Lender dated June 1, 2019 (the “Note”), Lender made a loan to Assignor in the amount of $2,700,000.00.
B.Assignor desires to assign to Assignee all of Assignor’s right, title, and interest in the Note and Assignee
desires to assume the same, subject to the terms, provisions, and modifications contained herein.
NOW, THEREFORE, in consideration of the above recitals which are incorporated herein, and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged by Assignor, Assignee, and Lender, the parties hereto hereby agree as follows.
1.Assignment. Assignor hereby assigns to Assignee all of Assignor’s right, title, and interest in and to the Note. Assignor hereby delegates to Assignee all of Assignor’s obligations under the Note arising or accruing on or after the date hereof, and Assignee hereby assumes such obligations under the Note arising or accruing after the date hereof.
2.Modifications to the Note. Notwithstanding any provision in the Note to the contrary, the term
“Borrower” shall mean CoJax Oil and Gas Corporation.
3.Full Force and Effect. The Note, as modified by this Assignment, is hereby ratified and confirmed by the parties hereto and shall remain in full force and effect.
4.Binding Effect. This Assignment shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
5.Counterparts. The parties may execute this Assignment on separate counterparts or separate signature pages, all of which, taken together, shall constitute one and the same instrument.
6.Further Assurances. Assignor and Lender agree to execute any further documents, and to take any further actions reasonably requested by Assignee to effectuate the agreements between the parties reflected herein.
7.Release of Assignor. In consideration of the benefits provided herein, and intending to be legally bound, Assignee and Lender hereby irrevocably and unconditionally release and forever discharge Assignor of and from any and all rights, obligations, promises, agreements, debts, losses, controversies, claims, causes of action, liabilities, damages, and expenses, including without limitation attorneys’ fees and costs, of any nature whatsoever, whether known or unknown, asserted or unasserted, which they ever had, now have, or hereafter may have against Assignor arising under the Note.
1.
Exhibit 2.4 CoJax Assumption of Barrister Note
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS ASSIGNMENT TO BE EXECUTED ON THE DATE FIRST SET FORTH ABOVE.
ASSIGNOR:
BARRISTER ENERGY, LLC
By:/s/ Andrew S. Cardwell Name: Andrew S. Cardwell Title: Manager
ASSIGNEE:
COJAX OIL AND GAS CORPORATION
By: /s/ Jeffrey Guzy Name: Jeffrey Guzy
Title: CEO and Executive Chairman
LENDER:
CENTRAL OPERATING, LLC
By: /s/Peter Biglane Name: Peter Biglane Title: Manager
OPERATING AGREEMENT
of
Barrister Energy, LLC
This Operating Agreement (this "Agreement") of Barrister Energy, LLC (the "LLC") is made by Andrew S. Cardwell, Sole Member.
RECITAL
The undersigned, Andrew S. Cardwell, as the sole Member of the LLC agrees to conduct its business in accordance with the provisions of this Agreement.
TERMS OF AGREEMENT
1.Name and Address. The name of the LLC shall be Barrister Energy, LLC and its principal office shall be 110 S. Oak Avenue, Heidelberg, MS 39439, or at such other place as the Member shall determine at a later date. The mailing address of the Barrister Energy, LLC shall be
P.O. Box 967, Heidelberg, MS 39439, or at such other place as the Member shall determine at a later date.
2.Purpose. The LLC is organized to acquire and develop oil and gas assets. The LLC may enter into, make and perform all contracts and all other undertakings and engage in any and all transactions the Member may deem necessary or advisable to carry out its purposes.
3.Term and Fiscal Year. The LLC shall continue until terminated pursuant to Section 11. The fiscal and taxable year of the LLC shall end on December 31.
4.Member Accounts. The LLC shall maintain separate records of account for each Member to record each Member's contributions, withdrawals and share of the LLC's net profits or net losses including unrealized profits and losses calculated in a manner consonant with approved accounting standards.
5.Capital Contributions. The initial capital contribution by the Member to the LLC was $100.00.
6.Profits and Losses. All profits and losses will be accounted for by the Member on the books of the LLC, distributed to the Member or reinvested in the business.
7.Managing Member. The general management, control, and conduct of the LLC's business shall be conducted by the sole Member. The Member will execute all legal documents for the LLC as the Managing Member of the LLC.
8.Additional Members. Additional Members may be admitted to the LLC under such terms and conditions (including capital contributions) as shall be determined at said time by the sole Member. If additional members are admitted this Operating Agreement will be amended to cover that change.
1.
Exhibit 3.1.2 Barrister Articles of Organization
9.Assignment of Interests. The interest of the sole Member may be assigned or transferred in whole or in part.
10.Causes for Termination. The LLC shall be terminated upon the earlier of:
10.1The vote of the sole Member to terminate the LLC;
I 0.2The death of the sole Member prior to the addition of other Members; or
10.3The decree of any court of competent jurisdiction directing the dissolution or termination of the LLC.
11.Liquidation. The LLC shall be liquidated upon its termination and proceeds thereof applied:
11.1First to the payment of the debts, liabilities and obligations of the LLC and to the costs and expenses of the liquidation;
11.2To the establishment of such reserves, if any, deemed reasonably necessary for any contingent or unforeseen debts, liabilities or obligationsof the LLC;
11.3To the pro rata retirement of each Member' s capital account. The liquidation shall be administered by the sole Member, except that should the Member be deceased, the liquidation shall be administered by his Executor or Administrator.
12.Agent for Process. Andrew S. Cardwell is designated as the agent for service of process.
13.Amendments. This Agreement may be amended at any time by the sole Member.
EXECUTION
Intending to be legally bound, the sole Member executed this Agreement and it came into full force and effect in accordance with its terms as of the 13th day of June, 2014.
/s/ Andrew S. Cardwell
Andrew S. Cardwell, Sole Member
/s/ Andrew S. Cardwell
Andrew S. Cardwell, Sole Member
Exhibit 3.2.1 Second Barrister Operating Agreement
SECOND LIMITED LIABILITY COMPANY AGREEMENT
OF
BARRISTER ENERGY, LLC
THIS SECOND LIMTED LIABILITY COMPANY AGREEMENT (this "Agreement") is executed under and is to be governed by the laws of the State of Mississippi and is entered into as of April 1, 2019, by and between the parties on Exhibit “A” (each of the foregoing being sometimes referred to individually as a "Member" and collectively as the "Members" or as a party or the parties) to establish the terms of the operation of Barrister Energy, LLC, a Mississippi limited liability company (the "Company").
WITNESSETH:
WHEREAS, the Members have formed the Company for the purposes set forth herein and desire to set forth all rights, obligations, liabilities and remedies of the Members in respect to the operation of the Company as a limited liability company.
NOW, THEREFORE, for good and valuable consideration, the parties hereby agree as follows:
ARTICLE I
FORMATION, NAME AND PRINCIPAL OFFICE
1.1Formation. The Company was originally formed via Operating Agreement dated June 13, 2014, by then sole Member Andrew S. Cardwell. The Company was formed as a limited liability company pursuant to the provisions of the Mississippi Limited Liability Company Act (as amended from time to time, the “Act”). Unless otherwise expressly provided in this Agreement, the rights and liabilities of the Manager(s) and the Members will be as provided in the Act. To the extent the provisions of this Agreement conflict with the provisions of the Act, the provisions of this Agreement will control, to the extent permitted by law, and the conflicting provisions of the Act will be deemed waived to the maximum extent permitted by law.
1.2Name and Offices. The Company will transact business under the name Barrister Energy, LLC, or such other name as the Member(s) or Manager(s) may hereafter select upon delivery of no less than thirty (30) days prior written notice thereof to the Members. Initially, the principal office of the Company was located at 110 S. Oak Avenue, Heidelberg, Mississippi 39439, henceforth the principal office of the Company shall be located at 404 Short 7th Avenue, Laurel, Mississippi 39440, with such other offices and places of business as may be agreed upon by the Members from time to time. The Registered Agent and the Registered Office was set forth in the Company’s Certificate of Formation and may be changed from time to time by the Manager(s).
1.3Term. The Company commenced on the date the Certificate of Formation was filed with the Mississippi Secretary of State (June 13, 2014), and, subject to the provisions of Article 11 (dissolution and winding up), will continue to December 31, 2044, unless sooner terminated pursuant to the provisions of this Agreement or unless extended by agreement of the Members.
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Exhibit 3.2.1 Second Barrister Operating Agreement
ARTICLE 2
PURPOSE OF BUSINESS
2.1Purpose of Business. The principle purpose of the Company henceforth shall be:
(a)To seek out, evaluate, test and prospect for oil, gas and mineral producing properties, and then to acquire, lease, own, develop, manage, operate, sell, sublease and otherwise deal with the properties;
(b)To accomplish all lawful business of the Company, or which shall at any time appear conducive to or expedient for the protection or benefit of the Company, its business and its assets;
(c)To exercise all powers necessary to or reasonably connected with the Company’s business that may be legally exercised by limited liability companies under the Act; and
(d)To engage in any other lawful activity for which a limited liability company may be formed under the laws of the State of Mississippi, if approved by Members holding at least a majority of the Membership Interests of the Company.
ARTICLE 3
ACCOUNTING AND REPORTS FOR THE COMPANY
3.1Records and Accounting. The books and records of the Company shall be kept, and the financial position and the results of its operations recorded, in accordance with the accounting methods selected by the Members. The books and records of the Company shall reflect all the Company transactions and shall be appropriate and adequate for the Company's business. The fiscal year of the Company for financial reporting and for federal income tax purposes shall be the calendar year.
3.2Access to Accounting, Records. All books and records of the Company shall be maintained at the principal office or at any other office of the Company agreed to by all of the Members. Each Member, and its duly authorized representative, shall have access to all books and records at the offices of the Company and the right to inspect and copy them at reasonable times. Notwithstanding the foregoing, each Member shall have the inspection rights granted by, and the Company shall maintain at its registered office the records listed in, Section 79-29-107 of the Mississippi Code of 1972, as amended.
3.3Outside Consultants. Outside accountants, attorneys and other consultants shall be selected and replaced by a simple majority vote of the Members of the Company.
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Exhibit 3.2.1 Second Barrister Operating Agreement
3.4Reports.
a.The Company shall use its best efforts to, within ninety (90) days after the end of each calendar year, send to each person who was a Member at any time during the year then ended such tax information as shall be necessary for inclusion by such Member in its federal income tax return of all items attributable to the Company.
b.Within ninety (90) days after the end of each calendar year, the Company will use its best efforts to send to each person who was a Member at any time during the year then ended the balance sheet of the Company as of the end of such year and statements of operations and changes in Members' capital contributions, prepared in accordance with the accounting method selected pursuant to Section 3.1 hereof. The information shall also set forth distributions to the Members for the period covered thereby and the amount of any distributions released from reserves established in prior periods.
3.5Tax Matters Partner. A majority of the Members shall designate a Member to be the "tax matters partner" of the Company for purposes of Subchapter C of Chapter 63 of Subtitle F of the Internal Revenue Code of 1986, as amended, (IRC § § 6221-6233). Such "tax matters partner" shall have the authority to exercise all functions provided for in the Internal Revenue Code, including to the extent permitted by the Internal Revenue Code, the authority to delegate the functions of "tax matters partner" to any other Member. The "tax matters partner" shall be reimbursed for all reasonable expenses actually incurred as a result of its duties as "tax matters partner." The initial "tax matters partner" shall be Andrew S. Cardwell.
ARTICLE 4
MEMBERSHIP INTERESTS; CAPITAL CONTRIBUTIONS; LOANS; LIABILITY
4.1Membership Interests. The interest of each Member shall be represented by membership interests ("Membership Interest"). Each Member shall contribute cash or services in exchange for their respective initial Membership Interest. In return for such contribution, each Member shall own the percentage interest set forth in Exhibit “A” hereto. Exhibit “A” shall be amended from time to time in accordance with the terms of this Agreement, including, but not limited to, to reflect appropriate adjustments to Membership Interest percentages and capital contributions on account of purchases and issuances of additional Membership Interests and the making of additional capital contributions pursuant to Section 4.3.
4.2Certificates for Membership Interests. The Membership Interests shall not be represented by any certificate of membership or other evidence of membership other than this Agreement.
4.3Additional Capital Contributions. Additional capital may be contributed to the Company, but only upon the consent of a majority in interest of the Members.
4.4 Capital Accounts. The capital account of each Member shall initially be set as determined by the accountants for the Company or by a majority of the Members, and shall, from time to time, be:
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Exhibit 3.2.1 Second Barrister Operating Agreement
(a) increased by:
(i)any additional capital contributions of such Member; and
(ii)such Member's share of profits of the Company, determined pursuant to Article 6, during each fiscal year, whether or not distributed; and
(iii)the agreed fair market value of any property (less liabilities assumed by the Company) contributed by such Member; and
(b) decreased by:
(i)all distributions to or for the account of such Member whether from the capital or income of the company (other than payments received by a Member in payment of any loan); and
(ii)such Member's share of losses of the Company determined during each fiscal year pursuant to Article 6; and
(iii)the agreed fair market value of any property (less liabilities assumed by the Member) distributed by the Company to such Member.
The foregoing provisions are intended to comply with the provisions contained in Treasury Regulations 1.704-1(b)(2)(iv) under the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code") and capital accounts shall be maintained in accordance with such provisions.
4.5Withdrawal and Return of Contributions. A Member does not have the right or power to withdraw from the Company as a Member, nor is the Member entitled to a return of any part of its capital contribution or to be paid interest on either their capital account or capital contribution.
4.6Obligations of Members and Third Parties. The right or obligation of any Member to make capital contributions shall not confer any right or claim upon or otherwise inure to the benefit of any creditor or other third party having dealings with the Company or other Member, it being understood that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto, and their respective successors and assigns.
4.7Liability of Members. No Member shall be bound by, or be personally liable for, the expenses, liabilities or obligations of the Company.
ARTICLE 5
MANAGEMENT
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Exhibit 3.2.1 Second Barrister Operating Agreement
5.1Management. Except as limited by this Agreement, each Member shall have equal rights in the determination of any matter involving the business of the Company; provided, however, that the Members, upon vote of a majority of all the Members, may appoint one or more Managers to manage the day-to-day operations of the Company as set forth in Section 5.2. A Manager may or may not be a Member. A Manager may in turn appoint an agent and attorney-in-fact to act in his/her stead in certain circumstances and for a specific purpose (e.g. executing agreements when the manager is unavailable). Except as determined by the Members pursuant to Section 5.2 or otherwise pursuant to this Agreement, no Member shall have any right or authority to take any action on behalf of the Company with respect to third parties. Action of the Members with respect to management of the Company pursuant to this Section 5.1 shall be in accordance with the procedures set forth in Article 8 concerning voting, meetings and notice.
5.2Authorization of Manager. In the event the Members appoint a Manager as provided in Section 5.1, any such Manager may exercise all powers necessary to carry on the ordinary, everyday business of the Company. In performance of his duties, any such duly appointed Manager may do all lawful acts and things, relating to it, as are directed by this Agreement and are not, by statute or by the Certificate of Formation or by this Agreement, prohibited. No Manager shall have any liability for any action taken, or for the failure to take any action, except to the extent required by Section 79-29-403(a)-(d) of the Mississippi Code of 1972, as amended. Notwithstanding the foregoing, the Manager shall not enter into on behalf of the Company any contract, arrangement, loan or other legal obligation in excess of $1,000,000.00 without the approval of a majority of the Members.
ARTICLE 6
DISTRIBUTIONS
From time to time the Members may determine the amount of cash available for distributions and may distribute such amount thereof as they deem appropriate. Any distributions shall be made pro rata to the Members in accordance with their Membership Interests in the Company. Any declared but unpaid distribution shall constitute a liability of the Company to a Member. Immediately prior to such distribution of property other than cash, the capital accounts of the Members shall be adjusted as provided in applicable Treasury Regulations, including, without limitation, Treasury Regulation 1.704-1(b)(2)(iv)(f). However, no distribution shall be declared and paid which would violate Section 79-29-605 of the Mississippi Code of 1972, as amended.
ARTICLE 7
PROFIT OR LOSSES
7.1Allocation. Except as may be required by Section 704(c) of the Internal Revenue Code and Treasury Regulation 1.704-1(b)(2)(iv)(f), the net profits or the net losses (and any separately stated items, including without limitation, depreciation, amortization and tax credits) of the Company shall be allocated to the Members, pro rata in accordance with their Membership Interests in the Company.
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Exhibit 3.2.1 Second Barrister Operating Agreement
All items of income, gain, loss, deduction, and credit available to any Membership Interest that may have been transferred shall be allocated between the transferor and the transferee based on the portion of the calendar year during which each was recognized as owning that Membership Interest, without regard to the results of Company operations during any particular portion of that calendar year and without regard to whether cash distributions were made to the transferor or the transferee during that calendar year; provided, however that this allocation must be made in accordance with a method permissible under Section 706 of the Internal Revenue Code and the regulations thereunder.
7.2Qualified Income Offset and Minimum Gain Chargeback Provisions.
(a)The Code and Treasury Regulations contain certain economic sharing requirements in order for income tax allocations among the Members to be respected for tax purposes. In general, such requirements are designed to eliminate the allocation of tax losses which have no economic effect to the Members. In order to comply with such requirements, the qualified income offset and minimum gain chargeback provisions provided for in Treasury Regulation Sections 1.704-1 and 1.704-2, as amended, shall be followed. The parties understand and agree that such provisions are not expected to alter the allocations described in Section 7.1, except in unusual and unforeseen circumstances.
(b)If a special allocation of an item of net profit or net loss is made to a Member under this Section 7.2, future allocations of profit and loss shall be adjusted to take into account such special allocations.
ARTICLE 8
ADMINISTRATIVE PROVISIONS
8.1Voting. Each annual meeting of Members shall be upon no more than sixty (60) days and not less than ten (10) days' prior written notice and any special meeting shall be in accordance with Section 8.2 hereof. Any Member may vote at any annual or special meeting either in person or by proxy. Participation in any meetings of the Members may be in person or by telephone. Action may also be taken by written consent of the appropriate amount of the Membership Interests. Notice of any meeting may be waived in writing, either before or after the meeting. The presence of a Member at any annual or special meeting shall constitute a waiver of notice, unless a Member's presence at such meeting is solely for the purpose of objecting to the form of notice or the holding of a meeting without proper notice. Unless a different vote is specifically required hereunder, any vote of the Members shall require the vote of a simple majority of the Members. Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting if the Members consent thereto in writing.
8.2Special Meetings. Special meetings of the Members may be called at any time by any Member upon two (2) days actual notice (written or verbal). Each such notice must state the matters to be presented at such meeting.
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Exhibit 3.2.1 Second Barrister Operating Agreement
8.3Place of Meetings and Quorum. All meetings shall be held at the Principal Business Office of the Company, unless the notice of meeting specifies otherwise or the Members agree otherwise. The conduct of any business at a meeting shall require the presence of at least a simple majority of the Members.
8.4Notices. All notices, demands, and other writings required herein, or delivered in connection herewith, may be either delivered in person or by private courier (which shall be effective upon delivery), by facsimile or similar communication (which shall be effective upon confirmation of delivery on the sender's facsimile machine or other communication device), or by prepaid registered or certified mail to the address for notice set forth herein (which shall be effective five business days (a day not a Saturday, Sunday or federal holiday) after being so mailed). Each Member agrees to notify the other Members in writing of a change of address for notices hereunder.
ARTICLE 9
RESTRICTIONS ON TRANSFERS OF INTERESTS
9.1General.
(a)Except as otherwise specifically provided herein, a Member shall not have the right to:
(i)sell, assign, pledge, hypothecate, transfer, exchange or otherwise transfer for consideration (collectively, "sell"), or
(ii)gift, bequeath or otherwise transfer for no consideration (whether or not by operation of law, except in the case of bankruptcy)
all or any part of his Membership Interest.
(b)Definitions:
(i)An "Economic Interest" shall mean a Member's or Economic Interest Owner's share of the Company's net profits, net losses and/or distributions of the Company's assets pursuant to this Agreement and the Mississippi Limited Liability Company Act, but shall not include any right to participate in the management or affairs of the Company, including the
right to vote on, consent to or otherwise participate in any decision of the
Members.
(ii)An "Economic Interest Owner" shall mean the owner of an Economic Interest who is not a Member. All provisions of this Agreement applicable to Members relative to sharing of profits, losses, capital accounts, and distributions (except with respect to voting rights and rights to participate in management) shall also apply to Economic Interest Owners.
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Exhibit 3.2.1 Second Barrister Operating Agreement
(iii)An "Event of Dissociation" shall mean the death, withdrawal, expulsion, bankruptcy or dissolution of a Member or occurrence of any other event under the Act which terminates the continued membership of a Member in the Company.
(iv)A "Selling Member" shall mean any Member or Economic Interest Owner who sells, assigns, pledges, hypothecates or otherwise transfers for consideration all or any portion of his Membership Units or Economic Interest in accordance with this Article VIII.
(v)A "Transferring Member" shall mean a Selling Member or a Gifting Member.
9.2Right of First Refusal.
(a)A Selling Member who desires to sell all or any portion of his Membership Interest or Economic Interest in the Company to a third party purchaser shall obtain from such third party purchaser a bona fide written offer to purchase such interest, stating the terms and conditions upon which the purchase is to be made and the consideration offered therefor. The Selling Member shall give written notification to the Company of his intention to so transfer such interest, furnishing to the Company a copy of the aforesaid written offer to purchase such interest.
(b)The Company shall have the right to exercise a right of first refusal to purchase all (but not less than all) of the interest proposed to be sold by the Selling Member, upon the same terms and conditions as stated in the aforesaid written offer to purchase, by giving written notification to the Selling Member, by certified mail or personal delivery, of the Company's intention to do so within 30 days after the effective date of the notice from the Selling Member.
(c)If the Company does not exercise its rights under Section 9.2(b), then the Selling Member shall give written notification to the remaining Members, by certified mail or personal delivery, of his intention to transfer such interest, furnishing to the Members a copy of the written offer to purchase such interest. The remaining Members, on a basis pro rata to the percentage of the total Membership Interest of those remaining Members exercising their right of first refusal, shall have the right to exercise a right of first refusal to purchase all (but not less than all) of the interest proposed to be sold by the Selling Member, upon the same terms and conditions as stated in the aforesaid written offer to purchase by giving written notification to the Selling Member, by certified mail or personal delivery, of their intention to do so within 30 days after receiving written notice from the Selling Member. The failure of the remaining Members (or any one or more of them) to so notify the Selling Member of their desire to exercise this right of first refusal within said 30 day period shall result in the termination of the right of first refusal and the Selling Member shall be entitled to consummate the sale of his interest in the Company on the terms set forth in the written notification; provided, that the closing of such transfer must occur within 30 days of the expiration of the Members' right of first refusal described herein.
(d)If the Company or remaining Members (or any one or more of the remaining Members) give written notice to the Selling Member of their desire to exercise this right of first
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Exhibit 3.2.1 Second Barrister Operating Agreement
refusal and to purchase all of the Selling Member's interest, the closing shall occur within or on the date 30 days after the expiration of the applicable right of first refusal period. If the third party offer consists of any non-cash consideration, the exercising Members or the Company, as the case may be, shall have the option to provide the Selling Member with reasonably identical property or to provide cash in an amount equal to the fair market value of such property as determined by the Members or, if the Members fail to value such property, by an appraiser of the type of property to be hired and paid for by the Members or the Company, as the case may be (subject to the right of the Selling Member to agree to hire such an appraiser at his cost in writing in the notice to the Company as described in (a) above).
(e)In the event of the purchase of the Selling Member's interest in the Company by a third party purchaser (including an Economic Interest), and as a condition to recognizing the effectiveness and binding nature of any such sale and substitution of a new Member, the Members may require the Selling Member, and shall require the proposed purchaser, to execute, acknowledge and deliver to the Company a copy of this Agreement and such instruments of transfer, assignment and assumption and such other certificates, representations and documents, and to perform all such other acts which the Members may deem necessary or desirable to:
(i)constitute such purchaser as a Member;
(ii)confirm that the person desiring to acquire an interest or interests in the Company, or to be admitted as a Member, has accepted, assumed and agreed to be subject and bound by all of the terms, obligations and conditions of this Agreement, as the same may have been further amended (whether such person is to be admitted as a new Member or will merely be an Economic Interest Owner);
(iii)preserve the Company after the completion of such sale, transfer, assignment, or substitution under the laws of each jurisdiction in which the Company is formed, qualified, organized or does business;
(iv)maintain the status of the Company as a limited liability company under the Mississippi Limited Liability Company Act and as a partnership for federal tax purposes; and
(v)assure compliance with any applicable state and federal laws, including securities laws and regulations.
(f)Any sale or gift of a Membership Interest or Economic Interest or admission of a Member in compliance with this Article 8 shall be deemed effective as of the last day of the calendar month in which the remaining Members' consent thereto was given, or, if no such consent was required, then on such date that the donee or successor-in-interest complies with Section 8.2(g). All costs incurred by the Company as a result of any sale or gift of a Membership Interest or Economic Interest, including the Company's reasonable legal fees, shall be paid by the Transferring Member. The Transferring Member agrees, upon request of the remaining Members,
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Exhibit 3.2.1 Second Barrister Operating Agreement
to execute such certificates or other documents and perform such other acts as may be reasonably requested by the remaining Members from time to time in connection with such sale, transfer, assignment, or substitution at the sole cost and expense of the Transferring Member. The Transferring Member hereby indemnifies the Company and the remaining Members against any and all loss, damage, or expense (including, without limitation, tax liabilities or loss of tax benefits) arising directly or indirectly as a result of any transfer or purported transfer in violation of this Article 8 or any other provision of this Agreement.
(g)In the event all Members exercise unanimous consent to sell all Membership Interests in the Company to a third party purchaser (i.e. buyout of all Membership Interests), then the requirements and formalities of the right of first refusal provisions (to the Company) contained herein above are moot and waived, so long as all Members execute a consent agreement in the form of a resolution or the equivalent thereof.
9.3Transferee Not Member in Absence of Consent
(a)Notwithstanding anything contained herein to the contrary, without approval of Members holding a majority of the Membership Interests of the Company (excluding a Member who is disposing of his interest), the proposed sale of the Transferring Member's Membership Interests or Economic Interest will result in the transferee, who or which is not a Member immediately prior to the sale or gift, owning no more than an Economic Interest, and such donee or transferee shall have no right to become a Member. No transfer of a Member's interest in the Company (including any transfer of an Economic Interest or any other transfer which has not been approved by the requisite consent of the Members) shall be effective unless and until written notice (including the name and address of the proposed transferee or donee and the date of such transfer) has been provided to the Company and the non-transferring Member(s).
(b)Upon and contemporaneously with any sale or gift of a Transferring Member's Economic Interest in the Company which does not at the same time transfer the balance of the rights associated with the Economic Interest transferred by the Transferring Member, the Company shall purchase from the Transferring Member, and the Transferring Member shall sell to the Company for a purchase price of $100.00, all remaining rights and interests retained by the Transferring Member which immediately prior to such sale or gift were associated with the transferred Economic Interest.
(c)The failure to exercise a right of first refusal shall not be deemed as the consent to admission of the transferee as a Member or as the waiver of any future right of first refusal to which such Member may become entitled.
(d)Article 9.3 is subject to the unanimous consent to sell all Membership Interests provisions contained in Article 9.2(g) supra. If the right of first refusal is waived by unanimous consent of all Members via written resolution, then a third party transferee shall in no way have their succeeding Membership Interest(s) affected by this Article, and said transferee shall take ownership of all Membership Interests free and clear and not subject to any limitations created by this Agreement.
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Exhibit 3.2.1 Second Barrister Operating Agreement
9.4Permitted Transfers by or for Entities. An Entity owning Membership Interests or Economic Interests may liquidate, dissolve, merge, consolidate or engage in any other form of restructuring or reorganization involving the transfer or other disposition of its Membership Interests or Economic Interests, and may in any other manner distribute such Membership Interests or Economic Interests, to any one or more of the beneficial owners of such Entity (collectively, an "Entity Transfer"), without complying with the provisions set forth in Sections 8.1, 8.2 and 8.3 of this Article VIII; provided that at no time during or at the completion of such Entity Transfer any person or Entity other than the aforesaid beneficial owners, holds any interest in such Membership Interests or Economic Interests and such transferees comply with the provisions of Section 8.2(g) hereof.
9.5Transfers to Members. Any Member may sell or transfer his interest to another Member (by exercise of a right of first refusal or otherwise) only after compliance with Section 9.2 hereof, and no consent of the remaining Members shall be required to effect such transfer.
ARTICLE 10
LIMITED LIABILITY AND INDEMNIFICATION
10.1Limitation on Liability of Members. No Member (when not acting in violation of this Agreement or applicable law) shall have any liability to the Company or the Members for any losses sustained or liabilities incurred as a result of any act or omission of such Member in connection with the conduct of the business of the Company. Except as required by Mississippi Code of 1972, as amended, the Company’s debts, obligations and liabilities, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be personally liable for any such debt, obligation or liability of the Company solely by reason of being a Member. No Member shall be liable for the debts, obligations or liabilities of the Company, including under a judgment or order of a court.
10.2Indemnification. The Company shall indemnify any current or former Member, Manager or Officer of the Company to the fullest extent permitted by Section 79-29-110 of the Mississippi Code of 1972, as amended, including through the purchase of insurance, against expenses, judgments and other losses arising out of their status as a Member, Manager or officer, provided that the Member, Manager or officer has met the appropriate standard of conduct as set forth by law, in the interpretation of the Members. Any indemnification hereunder shall be satisfied only out of the assets of the Company, and the Members shall not be subject to personal liability by reason of the indemnification provisions under this Section 10.2.
ARTICLE 11
DISSOLUTION AND TERMINATION
11.1Events Causing Dissolution. The Company shall dissolve and its affairs shall be wound up on the first to occur of the following:
(a)December 31, 2044, unless continued by the Members;
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Exhibit 3.2.1 Second Barrister Operating Agreement
(b)upon the written consent of Members holding at least eighty (80%) percent of the Membership Interests of the Company;
(c)upon an Event of Dissociation of a Member (as provided in Section 79-29-307 of the Mississippi Code of 1972, as amended), unless the business of the Company is continued by an agreement of two or more Members (excluding the Member if he or she is the dissociated Member) holding a majority of the Membership Interests of the Company, within ninety (90) days following the occurrence of any such event; and
(d)entry of a decree of judicial dissolution of the Company under Section 79-29-802 of the Mississippi Code of 1972, as amended.
11.2Liquidation and Termination. On dissolution of the Company, the Members shall act as liquidator or may appoint a committee of one or more Members to act as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Mississippi Limited Liability Company Act. The costs of dissolution shall be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Members.
11.3Distributions In-Kind. The Company may distribute the assets of the Company to the Members in-kind.
11.4Distributions upon Dissolution. Upon dissolution, the liquidation proceeds shall be distributed in the following order:
(a)First, to the payment of debts to outside creditors, including Members and Economic Interest holders who are creditors, to the extent permitted by law, in satisfaction of liabilities (other than liabilities for distributions to Members or Economic Interest holders under Sections 79-29-601 or 79-29-604 of the Mississippi Code of 1972, as amended) of the Company and for the payment of dissolution expenses.
(b)Second, to establish reserves to pay any contingent or unknown costs that may arise after dissolution.
(c)Third, to Members or Economic Interest holders to the extent they are creditors of the Company in satisfaction of liabilities for distributions under Sections 79-29-601 and 79-29-604 of the Mississippi Code of 1972, as amended.
(d)Fourth, to Members and Economic Interest holders to the extent of the credit balances in their respective capital accounts.
(e)Fifth, to Members and Economic Interest holders pro rata in accordance with their Membership and Economic Interests.
ARTICLE 12
GENERAL PROVISIONS
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Exhibit 3.2.1 Second Barrister Operating Agreement
12.1Choice of Law and Arbitration. The validity of this Agreement is to be determined under, and the provisions of this Agreement are to be construed in accordance with, the laws of the State of Mississippi, without regard to that state's choice of laws rules. All claims, disputes and other matters in question among the Members, Managers and Economic Interest holders arising out of or related to this Agreement or the breach thereof, shall be decided by the American Arbitration Association under the Commercial Rules of such Association. This agreement to arbitrate shall be specifically enforceable. Notice of the demand for arbitration shall be filed in writing with the Manager(s), with the other Members and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall demand for arbitration be made after the date when institution of legal proceedings would be barred by the applicable statute of limitations. Failure to give notice to a party and in the manner as provided for herein shall not be a waiver of the right to arbitrate unless the party to whom notice was to be given is prejudiced by such failure or unless the institution of a legal proceeding with respect to the claim, dispute or other matter would be barred by the applicable statute of limitations. The arbitrator(s) shall render a written opinion of his or their decision. The award rendered shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
12.2Binding Effect. This Agreement is to be binding upon, and inure to the benefit of the successors and permitted assigns of the Members.
12.3Gender and Plurality. Wherever applicable, the pronouns designating the masculine or neuter will equally apply to the feminine, neuter, or masculine genders. Furthermore, wherever applicable within this Agreement, the singular will include the plural and vice versa. The term "person" when used herein shall include a natural person and all forms of entities, including, without limitation, a corporation, trust, association, partnership, limited partnership, limited liability company or limited liability partnership.
12.4Captions. Article, section and paragraph captions and headnotes are for reference purposes only and will not be considered to affect context.
12.5Severability. Should any part or provision of this Agreement be found by a court of competent jurisdiction to be void, against public policy or otherwise unenforceable, such part or provision shall be deleted; but the Agreement and each of the remaining parts or provisions hereof, shall remain in full force and effect.
12.6Complete Agreement. This Agreement and the Certificate of Formation embodies the entire agreement and understanding among the Members and supersedes all prior agreements and understandings, if any, among and between Members relating to the subject matter hereof.
12.7Counterparts. It is expected and understood that this Agreement may be executed in several counterparts and that all counterparts so executed are to constitute one agreement binding all parties hereto, notwithstanding the fact that all parties are not signatories to the original or to the same counterpart. Any party hereto may execute this Agreement by facsimile signature or similar form of communication, and such signature shall be legal and valid for all purposes.
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Exhibit 3.2.1 Second Barrister Operating Agreement
Each party so executing this Agreement shall promptly sign an original hereof and deliver the originally signed document to the other Members.
12.8Amendment. This Agreement shall not be amended, modified, terminated or supplemented except by vote of Members holding a majority of the Membership Interests of the Company.
12.9No Third Party Rights. This Agreement and the covenants and agreements contained herein are solely for the benefit of the parties hereto. No other person shall be entitled to enforce or make any claims, or have any right pursuant to the provisions of this Agreement.
12.10Remedies. The parties acknowledge that monetary damages are inadequate for a breach hereof, and hereby agree that the provisions of this Agreement shall be enforceable by equitable relief, including specific performance, and each of the parties hereby waives any defense to the enforcement of this Agreement through equitable relief. However, equitable relief shall not be the exclusive remedy for breach of the Agreement, and the election of specific performance, damages or any other remedy hereunder shall not preclude the exercise of any other remedy in conjunction with such relief or from time to time thereafter.
12.11Partnership Tax Status. The Members intend that the Company shall be treated, and irrevocably consent to the treatment of the Company, as a partnership for federal and, to the extent permitted by applicable state law, state income tax purposes in accordance with, among other legal authorities, Sections 301.7701-1, 301.7701-2 and 301.7701-3 of the United States Treasury Regulations. This Agreement shall be construed in a manner that ensures the Company’s classification as a partnership for federal and state income tax purposes at all times, and any provision of this Agreement that would have the effect of preventing the Company from being classified as a partnership for federal and state income tax purposes shall be null and void. The Members shall take all actions, and execute, acknowledge and deliver all documents which, in the judgment of the Manager, or in the opinion of counsel to the Company, are necessary or desirable to obtain and/or maintain the Company’s classification as a partnership for such purposes at all times..
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
{SIGNATURES TO FOLLOW}
Member Name: Andrew Cardwell
Signature:__/s/ Andrew Cardwell________________________________________
Date of Signature: May 14, 2020
14
Exhibit 3.2.1 Second Barrister Operating Agreement
Member Name: Roger McLeod
Signature: /s/ Roger McLeod________________________________________
Date of Signature: May 14, 2020
Member Name: Jeffrey Delancey
Signature:__/s/ Jeffrey Delancey________________________________________
Date of Signature: May 14, 2020
Member Name: Lamar Resources, LLC, a limited liability company organized under the laws of the State of Texas (beneficial owner – Marty Rutland)
Signature:__/s/ Marty Rutland____________________________________
Date of Signature: May 14, 2020
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Exhibit 3.2.1 Second Barrister Operating Agreement
EXHIBIT “A”
Membership Interests
(Amended as of April 1, 2019, and ratified as of May 14, 2020)
NameMember Interest Initials
Roger McLeod 80.00%/s/ RM
Jeff Delancey 8.33%/s/ JD
Lamar Resources, LLC-Marty Rutland 6.67%/s/ MR
Andrew Cardwell 5.00%/s/AC
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Exhibit 3.2.2 Revised Second Operating Agreement
REVISED SECOND LIMITED LIABILITY COMPANY AGREEMENT
OF
BARRISTER ENERGY, LLC
THIS REVISED SECOND LIMTED LIABILITY COMPANY AGREEMENT (this "Agreement") is executed under and is to be governed by the laws of the State of Mississippi and is entered into as of May 14, 2020, with a retroactive date of April 1, 2019, by and between Roger McLeod, Jeff Delancey, Lamar Resources, LLC, and Andrew Cardwell (each of the foregoing being sometimes referred to individually as a "Member" and collectively as the "Members" or as a party or the parties) to establish the terms of the operation of Barrister Energy, LLC, a Mississippi limited liability company (the "Company").
WITNESSETH:
WHEREAS, the Members have formed the Company for the purposes set forth herein and desire to set forth all rights, obligations, liabilities and remedies of the Members in respect to the operation of the Company as a limited liability company.
NOW, THEREFORE, for good and valuable consideration, the parties hereby agree as follows:
ARTICLE I
FORMATION, NAME AND PRINCIPAL OFFICE
1.1Formation. The Company was originally formed via Operating Agreement dated June 13, 2014, by then sole Member Andrew S. Cardwell. The Company was formed as a limited liability company pursuant to the provisions of the Mississippi Limited Liability Company Act (as amended from time to time, the “Act”). Unless otherwise expressly provided in this Agreement, the rights and liabilities of the Manager(s) and the Members will be as provided in the Act. To the extent the provisions of this Agreement conflict with the provisions of the Act, the provisions of this Agreement will control, to the extent permitted by law, and the conflicting provisions of the Act will be deemed waived to the maximum extent permitted by law.
1.2Name and Offices. The Company will transact business under the name Barrister Energy, LLC, or such other name as the Member(s) or Manager(s) may hereafter select upon delivery of no less than thirty (30) days prior written notice thereof to the Members. Initially, the principal office of the Company was located at 110 S. Oak Avenue, Heidelberg, Mississippi 39439, henceforth the principal office of the Company shall be located at 404 Short 7th Avenue, Laurel, Mississippi 39440, with such other offices and places of business as may be agreed upon by the Members from time to time. The Registered Agent and the Registered Office was set forth in the Company’s Certificate of Formation and may be changed from time to time by the Manager(s).
1.3Term. The Company commenced on the date the Certificate of Formation was filed with the Mississippi Secretary of State (June 13, 2014), and, subject to the provisions of Article
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Exhibit 3.2.2 Revised Second Operating Agreement
11 (dissolution and winding up), will continue to December 31, 2044, unless sooner terminated pursuant to the provisions of this Agreement or unless extended by agreement of the Members.
ARTICLE 2
PURPOSE OF BUSINESS
2.1Purpose of Business. The principle purpose of the Company henceforth shall be:
(a)To seek out, evaluate, test and prospect for oil, gas and mineral producing properties, and then to acquire, lease, own, develop, manage, operate, sell, sublease and otherwise deal with the properties;
(b)To accomplish all lawful business of the Company, or which shall at any time appear conducive to or expedient for the protection or benefit of the Company, its business and its assets;
(c)To exercise all powers necessary to or reasonably connected with the Company’s business that may be legally exercised by limited liability companies under the Act; and
(d)To engage in any other lawful activity for which a limited liability company may be formed under the laws of the State of Mississippi, if approved by Members holding at least a majority of the Membership Interests of the Company.
ARTICLE 3
ACCOUNTING AND REPORTS FOR THE COMPANY
3.1Records and Accounting. The books and records of the Company shall be kept, and the financial position and the results of its operations recorded, in accordance with the accounting methods selected by the Members. The books and records of the Company shall reflect all the Company transactions and shall be appropriate and adequate for the Company's business. The fiscal year of the Company for financial reporting and for federal income tax purposes shall be the calendar year.
3.2Access to Accounting, Records. All books and records of the Company shall be maintained at the principal office or at any other office of the Company agreed to by all of the Members. Each Member, and its duly authorized representative, shall have access to all books and records at the offices of the Company and the right to inspect and copy them at reasonable times. Notwithstanding the foregoing, each Member shall have the inspection rights granted by, and the Company shall maintain at its registered office the records listed in, Section 79-29-107 of the Mississippi Code of 1972, as amended.
3.3Outside Consultants. Outside accountants, attorneys and other consultants shall be selected and replaced by a simple majority vote of the Members of the Company.
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Exhibit 3.2.2 Revised Second Operating Agreement
3.4Reports.
a.The Company shall use its best efforts to, within ninety (90) days after the end of each calendar year, send to each person who was a Member at any time during the year then ended such tax information as shall be necessary for inclusion by such Member in its federal income tax return of all items attributable to the Company.
b.Within ninety (90) days after the end of each calendar year, the Company will use its best efforts to send to each person who was a Member at any time during the year then ended the balance sheet of the Company as of the end of such year and statements of operations and changes in Members' capital contributions, prepared in accordance with the accounting method selected pursuant to Section 3.1 hereof. The information shall also set forth distributions to the Members for the period covered thereby and the amount of any distributions released from reserves established in prior periods.
3.5Tax Matters Partner. A majority of the Members shall designate a Member to be the "tax matters partner" of the Company for purposes of Subchapter C of Chapter 63 of Subtitle F of the Internal Revenue Code of 1986, as amended, (IRC § § 6221-6233). Such "tax matters partner" shall have the authority to exercise all functions provided for in the Internal Revenue Code, including to the extent permitted by the Internal Revenue Code, the authority to delegate the functions of "tax matters partner" to any other Member. The "tax matters partner" shall be reimbursed for all reasonable expenses actually incurred as a result of its duties as "tax matters partner." The initial "tax matters partner" shall be Andrew S. Cardwell.
ARTICLE 4
MEMBERSHIP INTERESTS; CAPITAL CONTRIBUTIONS; LOANS; LIABILITY
4.1Membership Interests. The interest of each Member shall be represented by membership interests ("Membership Interest"). Each Member shall contribute cash or services in exchange for their respective initial Membership Interest. In return for such contribution, each Member shall own the percentage interest set forth in Exhibit “A” hereto. Exhibit “A” shall be amended from time to time in accordance with the terms of this Agreement, including, but not limited to, to reflect appropriate adjustments to Membership Interest percentages and capital contributions on account of purchases and issuances of additional Membership Interests and the making of additional capital contributions pursuant to Section 4.3.
4.2Certificates for Membership Interests. The Membership Interests shall not be represented by any certificate of membership or other evidence of membership other than this Agreement.
4.3Additional Capital Contributions. Additional capital may be contributed to the Company, but only upon the consent of a majority in interest of the Members.
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Exhibit 3.2.2 Revised Second Operating Agreement
4.4 Capital Accounts. The capital account of each Member shall initially be set as determined by the accountants for the Company or by a majority of the Members, and shall, from time to time, be:
(a) increased by:
(i)any additional capital contributions of such Member; and
(ii)such Member's share of profits of the Company, determined pursuant to Article 6, during each fiscal year, whether or not distributed; and
(iii)the agreed fair market value of any property (less liabilities assumed by the Company) contributed by such Member; and
(b) decreased by:
(i)all distributions to or for the account of such Member whether from the capital or income of the company (other than payments received by a Member in payment of any loan); and
(ii)such Member's share of losses of the Company determined during each fiscal year pursuant to Article 6; and
(iii)the agreed fair market value of any property (less liabilities assumed by the Member) distributed by the Company to such Member.
The foregoing provisions are intended to comply with the provisions contained in Treasury Regulations 1.704-1(b)(2)(iv) under the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code") and capital accounts shall be maintained in accordance with such provisions.
4.5Withdrawal and Return of Contributions. A Member does not have the right or power to withdraw from the Company as a Member, nor is the Member entitled to a return of any part of its capital contribution or to be paid interest on either their capital account or capital contribution.
4.6Obligations of Members and Third Parties. The right or obligation of any Member to make capital contributions shall not confer any right or claim upon or otherwise inure to the benefit of any creditor or other third party having dealings with the Company or other Member, it being understood that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto, and their respective successors and assigns.
4.7Liability of Members. No Member shall be bound by, or be personally liable for, the expenses, liabilities or obligations of the Company.
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Exhibit 3.2.2 Revised Second Operating Agreement
ARTICLE 5
MANAGEMENT
5.1Management. Except as limited by this Agreement, each Member shall have equal rights in the determination of any matter involving the business of the Company; provided, however, that the Members, upon vote of a majority of all the Members, may appoint one or more Managers to manage the day-to-day operations of the Company as set forth in Section 5.2. A Manager may or may not be a Member. A Manager may in turn appoint an agent and attorney-in-fact to act in his/her stead in certain circumstances and for a specific purpose (e.g. executing agreements when the manager is unavailable). Except as determined by the Members pursuant to Section 5.2 or otherwise pursuant to this Agreement, no Member shall have any right or authority to take any action on behalf of the Company with respect to third parties. Action of the Members with respect to management of the Company pursuant to this Section 5.1 shall be in accordance with the procedures set forth in Article 8 concerning voting, meetings and notice.
5.2Authorization of Manager. In the event the Members appoint a Manager as provided in Section 5.1, any such Manager may exercise all powers necessary to carry on the ordinary, everyday business of the Company. In performance of his duties, any such duly appointed Manager may do all lawful acts and things, relating to it, as are directed by this Agreement and are not, by statute or by the Certificate of Formation or by this Agreement, prohibited. No Manager shall have any liability for any action taken, or for the failure to take any action, except to the extent required by Section 79-29-403(a)-(d) of the Mississippi Code of 1972, as amended. Notwithstanding the foregoing, the Manager shall not enter into on behalf of the Company any contract, arrangement, loan or other legal obligation in excess of $1,000,000.00 without the approval of a majority of the Members.
5.3 Appointment of a Filing Manager. In addition to the Manager who is charged with the responsibility of maintaining the daily activities of the Company, there shall be a Filing Manager of the Company whose sole responsibility shall be the filing of the Mississippi Annual Report for Limited Liability Companies with the Secretary of State of Mississippi, and on the Annual Report the Filing Manager shall be identified as a Manager of the Company. The Filing Manager shall be Andrew S. Cardwell, attorney for the Company, and the Filing Manager can resign at any time or be replaced by the Managers of the Company, with or without cause.
ARTICLE 6
DISTRIBUTIONS
From time to time the Members may determine the amount of cash available for distributions and may distribute such amount thereof as they deem appropriate. Any distributions shall be made pro rata to the Members in accordance with their Membership Interests in the Company. Any declared but unpaid distribution shall constitute a liability of the Company to a Member. Immediately prior to such distribution of property other than cash, the capital accounts of the Members shall be adjusted as provided in applicable Treasury Regulations, including, without limitation, Treasury Regulation 1.704-1(b)(2)(iv)(f). However, no distribution shall be
5
Exhibit 3.2.2 Revised Second Operating Agreement
declared and paid which would violate Section 79-29-605 of the Mississippi Code of 1972, as amended.
ARTICLE 7
PROFIT OR LOSSES
7.1Allocation. Except as may be required by Section 704(c) of the Internal Revenue Code and Treasury Regulation 1.704-1(b)(2)(iv)(f), the net profits or the net losses (and any separately stated items, including without limitation, depreciation, amortization and tax credits) of the Company shall be allocated to the Members, pro rata in accordance with their Membership Interests in the Company.
All items of income, gain, loss, deduction, and credit available to any Membership Interest that may have been transferred shall be allocated between the transferor and the transferee based on the portion of the calendar year during which each was recognized as owning that Membership Interest, without regard to the results of Company operations during any particular portion of that calendar year and without regard to whether cash distributions were made to the transferor or the transferee during that calendar year; provided, however that this allocation must be made in accordance with a method permissible under Section 706 of the Internal Revenue Code and the regulations thereunder.
7.2Qualified Income Offset and Minimum Gain Chargeback Provisions.
(a)The Code and Treasury Regulations contain certain economic sharing requirements in order for income tax allocations among the Members to be respected for tax purposes. In general, such requirements are designed to eliminate the allocation of tax losses which have no economic effect to the Members. In order to comply with such requirements, the qualified income offset and minimum gain chargeback provisions provided for in Treasury Regulation Sections 1.704-1 and 1.704-2, as amended, shall be followed. The parties understand and agree that such provisions are not expected to alter the allocations described in Section 7.1, except in unusual and unforeseen circumstances.
(b)If a special allocation of an item of net profit or net loss is made to a Member under this Section 7.2, future allocations of profit and loss shall be adjusted to take into account such special allocations.
ARTICLE 8
ADMINISTRATIVE PROVISIONS
8.1Voting. Each annual meeting of Members shall be upon no more than sixty (60) days and not less than ten (10) days' prior written notice and any special meeting shall be in accordance with Section 8.2 hereof. Any Member may vote at any annual or special meeting either in person or by proxy. Participation in any meetings of the Members may be in person or by telephone. Action may also be taken by written consent of the appropriate amount of the Membership Interests. Notice of any meeting may be waived in writing, either before or after the
6
Exhibit 3.2.2 Revised Second Operating Agreement
meeting. The presence of a Member at any annual or special meeting shall constitute a waiver of notice, unless a Member's presence at such meeting is solely for the purpose of objecting to the form of notice or the holding of a meeting without proper notice. Unless a different vote is specifically required hereunder, any vote of the Members shall require the vote of a simple majority of the Members. Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting if the Members consent thereto in writing.
8.2Special Meetings. Special meetings of the Members may be called at any time by any Member upon two (2) days actual notice (written or verbal). Each such notice must state the matters to be presented at such meeting.
8.3Place of Meetings and Quorum. All meetings shall be held at the Principal Business Office of the Company, unless the notice of meeting specifies otherwise or the Members agree otherwise. The conduct of any business at a meeting shall require the presence of at least a simple majority of the Members.
8.4Notices. All notices, demands, and other writings required herein, or delivered in connection herewith, may be either delivered in person or by private courier (which shall be effective upon delivery), by facsimile or similar communication (which shall be effective upon confirmation of delivery on the sender's facsimile machine or other communication device), or by prepaid registered or certified mail to the address for notice set forth herein (which shall be effective five business days (a day not a Saturday, Sunday or federal holiday) after being so mailed). Each Member agrees to notify the other Members in writing of a change of address for notices hereunder.
ARTICLE 9
RESTRICTIONS ON TRANSFERS OF INTERESTS
9.1General.
(a)Except as otherwise specifically provided herein, a Member shall not have the right to:
(i)sell, assign, pledge, hypothecate, transfer, exchange or otherwise transfer for consideration (collectively, "sell"), or
(ii)gift, bequeath or otherwise transfer for no consideration (whether or not by operation of law, except in the case of bankruptcy)
all or any part of his Membership Interest.
(b)Definitions:
(i)An "Economic Interest" shall mean a Member's or Economic Interest Owner's share of the Company's net profits, net losses and/or distributions of the Company's assets pursuant to this Agreement and the
7
Exhibit 3.2.2 Revised Second Operating Agreement
Mississippi Limited Liability Company Act, but shall not include any right to participate in the management or affairs of the Company, including the
right to vote on, consent to or otherwise participate in any decision of the
Members.
(ii)An "Economic Interest Owner" shall mean the owner of an Economic Interest who is not a Member. All provisions of this Agreement applicable to Members relative to sharing of profits, losses, capital accounts, and distributions (except with respect to voting rights and rights to participate in management) shall also apply to Economic Interest Owners.
(iii)An "Event of Dissociation" shall mean the death, withdrawal, expulsion, bankruptcy or dissolution of a Member or occurrence of any other event under the Act which terminates the continued membership of a Member in the Company.
(iv)A "Selling Member" shall mean any Member or Economic Interest Owner who sells, assigns, pledges, hypothecates or otherwise transfers for consideration all or any portion of his Membership Units or Economic Interest in accordance with this Article VIII.
(v)A "Transferring Member" shall mean a Selling Member or a Gifting Member.
9.2Right of First Refusal.
(a)A Selling Member who desires to sell all or any portion of his Membership Interest or Economic Interest in the Company to a third party purchaser shall obtain from such third party purchaser a bona fide written offer to purchase such interest, stating the terms and conditions upon which the purchase is to be made and the consideration offered therefor. The Selling Member shall give written notification to the Company of his intention to so transfer such interest, furnishing to the Company a copy of the aforesaid written offer to purchase such interest.
(b)The Company shall have the right to exercise a right of first refusal to purchase all (but not less than all) of the interest proposed to be sold by the Selling Member, upon the same terms and conditions as stated in the aforesaid written offer to purchase, by giving written notification to the Selling Member, by certified mail or personal delivery, of the Company's intention to do so within 30 days after the effective date of the notice from the Selling Member.
(c)If the Company does not exercise its rights under Section 9.2(b), then the Selling Member shall give written notification to the remaining Members, by certified mail or personal delivery, of his intention to transfer such interest, furnishing to the Members a copy of the written offer to purchase such interest. The remaining Members, on a basis pro rata to the percentage of the total Membership Interest of those remaining Members exercising their right of first refusal, shall have the right to exercise a right of first refusal to purchase all (but not less than all) of the interest proposed to be sold by the Selling Member, upon the same terms and conditions
8
Exhibit 3.2.2 Revised Second Operating Agreement
as stated in the aforesaid written offer to purchase by giving written notification to the Selling Member, by certified mail or personal delivery, of their intention to do so within 30 days after receiving written notice from the Selling Member. The failure of the remaining Members (or any one or more of them) to so notify the Selling Member of their desire to exercise this right of first refusal within said 30 day period shall result in the termination of the right of first refusal and the Selling Member shall be entitled to consummate the sale of his interest in the Company on the terms set forth in the written notification; provided, that the closing of such transfer must occur within 30 days of the expiration of the Members' right of first refusal described herein.
(d)If the Company or remaining Members (or any one or more of the remaining Members) give written notice to the Selling Member of their desire to exercise this right of first refusal and to purchase all of the Selling Member's interest, the closing shall occur within or on the date 30 days after the expiration of the applicable right of first refusal period. If the third party offer consists of any non-cash consideration, the exercising Members or the Company, as the case may be, shall have the option to provide the Selling Member with reasonably identical property or to provide cash in an amount equal to the fair market value of such property as determined by the Members or, if the Members fail to value such property, by an appraiser of the type of property to be hired and paid for by the Members or the Company, as the case may be (subject to the right of the Selling Member to agree to hire such an appraiser at his cost in writing in the notice to the Company as described in (a) above).
(e)In the event of the purchase of the Selling Member's interest in the Company by a third party purchaser (including an Economic Interest), and as a condition to recognizing the effectiveness and binding nature of any such sale and substitution of a new Member, the Members may require the Selling Member, and shall require the proposed purchaser, to execute, acknowledge and deliver to the Company a copy of this Agreement and such instruments of transfer, assignment and assumption and such other certificates, representations and documents, and to perform all such other acts which the Members may deem necessary or desirable to:
(i)constitute such purchaser as a Member;
(ii)confirm that the person desiring to acquire an interest or interests in the Company, or to be admitted as a Member, has accepted, assumed and agreed to be subject and bound by all of the terms, obligations and conditions of this Agreement, as the same may have been further amended (whether such person is to be admitted as a new Member or will merely be an Economic Interest Owner);
(iii)preserve the Company after the completion of such sale, transfer, assignment, or substitution under the laws of each jurisdiction in which the Company is formed, qualified, organized or does business;
(iv)maintain the status of the Company as a limited liability company under the Mississippi Limited Liability Company Act and as a partnership for federal tax purposes; and
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Exhibit 3.2.2 Revised Second Operating Agreement
(v)assure compliance with any applicable state and federal laws, including securities laws and regulations.
(f)Any sale or gift of a Membership Interest or Economic Interest or admission of a Member in compliance with this Article 8 shall be deemed effective as of the last day of the calendar month in which the remaining Members' consent thereto was given, or, if no such consent was required, then on such date that the donee or successor-in-interest complies with Section 8.2(g). All costs incurred by the Company as a result of any sale or gift of a Membership Interest or Economic Interest, including the Company's reasonable legal fees, shall be paid by the Transferring Member. The Transferring Member agrees, upon request of the remaining Members, to execute such certificates or other documents and perform such other acts as may be reasonably requested by the remaining Members from time to time in connection with such sale, transfer, assignment, or substitution at the sole cost and expense of the Transferring Member. The Transferring Member hereby indemnifies the Company and the remaining Members against any and all loss, damage, or expense (including, without limitation, tax liabilities or loss of tax benefits) arising directly or indirectly as a result of any transfer or purported transfer in violation of this Article 8 or any other provision of this Agreement.
(g)In the event all Members exercise unanimous consent to sell all Membership Interests in the Company to a third party purchaser (i.e. buyout of all Membership Interests), then the requirements and formalities of the right of first refusal provisions (to the Company) contained herein above are moot and waived, so long as all Members execute a consent agreement in the form of a resolution or the equivalent thereof.
9.3Transferee Not Member in Absence of Consent
(a)Notwithstanding anything contained herein to the contrary, without approval of Members holding a majority of the Membership Interests of the Company (excluding a Member who is disposing of his interest), the proposed sale of the Transferring Member's Membership Interests or Economic Interest will result in the transferee, who or which is not a Member immediately prior to the sale or gift, owning no more than an Economic Interest, and such donee or transferee shall have no right to become a Member. No transfer of a Member's interest in the Company (including any transfer of an Economic Interest or any other transfer which has not been approved by the requisite consent of the Members) shall be effective unless and until written notice (including the name and address of the proposed transferee or donee and the date of such transfer) has been provided to the Company and the non-transferring Member(s).
(b)Upon and contemporaneously with any sale or gift of a Transferring Member's Economic Interest in the Company which does not at the same time transfer the balance of the rights associated with the Economic Interest transferred by the Transferring Member, the Company shall purchase from the Transferring Member, and the Transferring Member shall sell to the Company for a purchase price of $100.00, all remaining rights and interests retained by the Transferring Member which immediately prior to such sale or gift were associated with the transferred Economic Interest.
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Exhibit 3.2.2 Revised Second Operating Agreement
(c)The failure to exercise a right of first refusal shall not be deemed as the consent to admission of the transferee as a Member or as the waiver of any future right of first refusal to which such Member may become entitled.
(d)Article 9.3 is subject to the unanimous consent to sell all Membership Interests provisions contained in Article 9.2(g) supra. If the right of first refusal is waived by unanimous consent of all Members via written resolution, then a third party transferee shall in no way have their succeeding Membership Interest(s) affected by this Article, and said transferee shall take ownership of all Membership Interests free and clear and not subject to any limitations created by this Agreement.
9.4Permitted Transfers by or for Entities. An Entity owning Membership Interests or Economic Interests may liquidate, dissolve, merge, consolidate or engage in any other form of restructuring or reorganization involving the transfer or other disposition of its Membership Interests or Economic Interests, and may in any other manner distribute such Membership Interests or Economic Interests, to any one or more of the beneficial owners of such Entity (collectively, an "Entity Transfer"), without complying with the provisions set forth in Sections 8.1, 8.2 and 8.3 of this Article VIII; provided that at no time during or at the completion of such Entity Transfer any person or Entity other than the aforesaid beneficial owners, holds any interest in such Membership Interests or Economic Interests and such transferees comply with the provisions of Section 8.2(g) hereof.
9.5Transfers to Members. Any Member may sell or transfer his interest to another Member (by exercise of a right of first refusal or otherwise) only after compliance with Section 9.2 hereof, and no consent of the remaining Members shall be required to effect such transfer.
ARTICLE 10
LIMITED LIABILITY AND INDEMNIFICATION
10.1Limitation on Liability of Members. No Member (when not acting in violation of this Agreement or applicable law) shall have any liability to the Company or the Members for any losses sustained or liabilities incurred as a result of any act or omission of such Member in connection with the conduct of the business of the Company. Except as required by Mississippi Code of 1972, as amended, the Company’s debts, obligations and liabilities, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be personally liable for any such debt, obligation or liability of the Company solely by reason of being a Member. No Member shall be liable for the debts, obligations or liabilities of the Company, including under a judgment or order of a court.
10.2Indemnification. The Company shall indemnify any current or former Member, Manager or Officer of the Company to the fullest extent permitted by Section 79-29-110 of the Mississippi Code of 1972, as amended, including through the purchase of insurance, against expenses, judgments and other losses arising out of their status as a Member, Manager or officer, provided that the Member, Manager or officer has met the appropriate standard of conduct as set forth by law, in the interpretation of the Members. Any indemnification hereunder shall be
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Exhibit 3.2.2 Revised Second Operating Agreement
satisfied only out of the assets of the Company, and the Members shall not be subject to personal liability by reason of the indemnification provisions under this Section 10.2.
ARTICLE 11
DISSOLUTION AND TERMINATION
11.1Events Causing Dissolution. The Company shall dissolve and its affairs shall be wound up on the first to occur of the following:
(a)December 31, 2044, unless continued by the Members;
(b)upon the written consent of Members holding at least eighty (80%) percent of the Membership Interests of the Company;
(c)upon an Event of Dissociation of a Member (as provided in Section 79-29-307 of the Mississippi Code of 1972, as amended), unless the business of the Company is continued by an agreement of two or more Members (excluding the Member if he or she is the dissociated Member) holding a majority of the Membership Interests of the Company, within ninety (90) days following the occurrence of any such event; and
(d)entry of a decree of judicial dissolution of the Company under Section 79-29-802 of the Mississippi Code of 1972, as amended.
11.2Liquidation and Termination. On dissolution of the Company, the Members shall act as liquidator or may appoint a committee of one or more Members to act as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Mississippi Limited Liability Company Act. The costs of dissolution shall be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Members.
11.3Distributions In-Kind. The Company may distribute the assets of the Company to the Members in-kind.
11.4Distributions upon Dissolution. Upon dissolution, the liquidation proceeds shall be distributed in the following order:
(a)First, to the payment of debts to outside creditors, including Members and Economic Interest holders who are creditors, to the extent permitted by law, in satisfaction of liabilities (other than liabilities for distributions to Members or Economic Interest holders under Sections 79-29-601 or 79-29-604 of the Mississippi Code of 1972, as amended) of the Company and for the payment of dissolution expenses.
(b)Second, to establish reserves to pay any contingent or unknown costs that may arise after dissolution.
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Exhibit 3.2.2 Revised Second Operating Agreement
(c)Third, to Members or Economic Interest holders to the extent they are creditors of the Company in satisfaction of liabilities for distributions under Sections 79-29-601 and 79-29-604 of the Mississippi Code of 1972, as amended.
(d)Fourth, to Members and Economic Interest holders to the extent of the credit balances in their respective capital accounts.
(e)Fifth, to Members and Economic Interest holders pro rata in accordance with their Membership and Economic Interests.
ARTICLE 12
GENERAL PROVISIONS
12.1Choice of Law and Arbitration. The validity of this Agreement is to be determined under, and the provisions of this Agreement are to be construed in accordance with, the laws of the State of Mississippi, without regard to that state's choice of laws rules. All claims, disputes and other matters in question among the Members, Managers and Economic Interest holders arising out of or related to this Agreement or the breach thereof, shall be decided by the American Arbitration Association under the Commercial Rules of such Association. This agreement to arbitrate shall be specifically enforceable. Notice of the demand for arbitration shall be filed in writing with the Manager(s), with the other Members and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall demand for arbitration be made after the date when institution of legal proceedings would be barred by the applicable statute of limitations. Failure to give notice to a party and in the manner as provided for herein shall not be a waiver of the right to arbitrate unless the party to whom notice was to be given is prejudiced by such failure or unless the institution of a legal proceeding with respect to the claim, dispute or other matter would be barred by the applicable statute of limitations. The arbitrator(s) shall render a written opinion of his or their decision. The award rendered shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
12.2Binding Effect. This Agreement is to be binding upon, and inure to the benefit of the successors and permitted assigns of the Members.
12.3Gender and Plurality. Wherever applicable, the pronouns designating the masculine or neuter will equally apply to the feminine, neuter, or masculine genders. Furthermore, wherever applicable within this Agreement, the singular will include the plural and vice versa. The term "person" when used herein shall include a natural person and all forms of entities, including, without limitation, a corporation, trust, association, partnership, limited partnership, limited liability company or limited liability partnership.
12.4Captions. Article, section and paragraph captions and headnotes are for reference purposes only and will not be considered to affect context.
12.5Severabilitv. Should any part or provision of this Agreement be found by a court of competent jurisdiction to be void, against public policy or otherwise unenforceable, such part
13
Exhibit 3.2.2 Revised Second Operating Agreement
or provision shall be deleted; but the Agreement and each of the remaining parts or provisions hereof, shall remain in full force and effect.
12.6Complete Agreement. This Agreement and the Certificate of Formation embodies the entire agreement and understanding among the Members and supersedes all prior agreements and understandings, if any, among and between Members relating to the subject matter hereof.
12.7Counterparts. It is expected and understood that this Agreement may be executed in several counterparts and that all counterparts so executed are to constitute one agreement binding all parties hereto, notwithstanding the fact that all parties are not signatories to the original or to the same counterpart. Any party hereto may execute this Agreement by facsimile signature or similar form of communication, and such signature shall be legal and valid for all purposes. Each party so executing this Agreement shall promptly sign an original hereof and deliver the originally signed document to the other Members.
12.8Amendment. This Agreement shall not be amended, modified, terminated or supplemented except by vote of Members holding a majority of the Membership Interests of the Company.
12.9No Third Party Rights. This Agreement and the covenants and agreements contained herein are solely for the benefit of the parties hereto. No other person shall be entitled to enforce or make any claims, or have any right pursuant to the provisions of this Agreement.
12.10Remedies. The parties acknowledge that monetary damages are inadequate for a breach hereof, and hereby agree that the provisions of this Agreement shall be enforceable by equitable relief, including specific performance, and each of the parties hereby waives any defense to the enforcement of this Agreement through equitable relief. However, equitable relief shall not be the exclusive remedy for breach of the Agreement, and the election of specific performance, damages or any other remedy hereunder shall not preclude the exercise of any other remedy in conjunction with such relief or from time to time thereafter.
12.11Partnership Tax Status. The Members intend that the Company shall be treated, and irrevocably consent to the treatment of the Company, as a partnership for federal and, to the extent permitted by applicable state law, state income tax purposes in accordance with, among other legal authorities, Sections 301.7701-1, 301.7701-2 and 301.7701-3 of the United States Treasury Regulations. This Agreement shall be construed in a manner that ensures the Company’s classification as a partnership for federal and state income tax purposes at all times, and any provision of this Agreement that would have the effect of preventing the Company from being classified as a partnership for federal and state income tax purposes shall be null and void. The Members shall take all actions, and execute, acknowledge and deliver all documents which, in the judgment of the Manager, or in the opinion of counsel to the Company, are necessary or desirable to obtain and/or maintain the Company’s classification as a partnership for such purposes at all times..
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
{SIGNATURES TO FOLLOW}
14
Exhibit 3.2.2 Revised Second Operating Agreement
Member Name: Andrew Cardwell
Signature:__/s/ Andrew Cardwell________________________________________
Date of Signature: May 14, 2020
Member Name: Roger McLeod
Signature: /s/ Roger McLeod________________________________________
Date of Signature: May 14, 2020
Member Name: Jeffrey Delancey
Signature:__/s/ Jeffrey Delancey________________________________________
Date of Signature: May 14, 2020
Member Name: Lamar Resources, LLC, a limited liability company organized under the laws of the State of Texas (beneficial owner – Marty Rutland)
Signature:__/s/ Marty Rutland____________________________________
Date of Signature: May 14, 2020
15
Exhibit 3.2.2 Revised Second Operating Agreement
EXHIBIT “A”
Membership Interests
(Amended as of April 1, 2019, and ratified as of May 14, 2020)
NameMember Interest Initials
Roger McLeod 80.00%/s/ RM
Jeff Delancey 8.33%/s/ JD
Lamar Resources, LLC-Marty Rutland 6.67%/s/ MR
Andrew Cardwell 5.00%/s/AC
16
Exhibit 4.1 CoJax Specimen Stock Certificate
Exhibit 23.1 Consent of Independent Petroleum Engineers
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
We hereby consent that CoJax Oil & Gas Corp. (the “Company”) can use the name Nova Resource, Inc., the inclusion of our corresponding reserve report, dated December 1st, 2019, and references to our reserve report in the Company’s public filings with the United States Securities & Exchange Commission.
We also consent to all references to us contained in such Registration Statement, including in the prospectus under the heading "Experts".
Nova Resource, Inc.
/s/ Joseph V. Rochefort
Joseph V. Rochefort
President
P.0. Box 743324
Tel (972) 530-3930
Dallas, Texas 75374
May 12th, 2020
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
The following Exhibit 99.1 to the Current Report on Form 8-K filed by CoJax Oil and Gas Corporation with the U.S. Securities and Exchange Commission or “SEC”, (“Form 8-K”) sets forth information about Barrister Energy, LLC and is to be read in conjunction with the Form 8-K and its other exhibits.
Certain terms used below or in the financial statements attached to the Form 8-K are:
GLOSSARY: Oil and Gas Industry Abbreviations and Defined Terms
The following are abbreviations and definitions of certain terms used in this Exhibit 99.1, which are commonly used in the oil and natural gas industry:
“ARO” means asset retirement obligation;
“Bcf” means one billion cubic feet of natural gas;
“Bcfd” means one billion cubic feet of natural gas per day;
“Btu” means one British thermal unit, the quantity of heat required to raise the temperature of a one-pound mass of water by one degree of Fahrenheit;
“Basin” means a large natural depression on the earth’s surface in which sediments generally brought by water accumulate;
“CapEx” means capital expenditures;
“Completion” means the process of treating a drilled well followed by the installation of permanent equipment for the production of natural gas or oil, or in the case of a dry hole, the reporting of abandonment to the appropriate agency;
“D&C costs” means drilling and completion costs;
“Developed acreage” means the number of acres that are allocated or assignable to productive wells or wells capable of production;
“Estimated ultimate recovery” or “EUR” means the sum of reserves remaining as of a given date and cumulative production as of that date. As used in this filing, EUR includes only proved reserves and is based on our reserve estimates;
“Exploratory well” means a well drilled to find and produce natural gas or oil reserves not classified as proved, to find a new reservoir in a field previously found to be productive of natural gas or oil in another reservoir or to extend a known reservoir;
“FERC” means the Federal Energy Regulatory Commission;
“Field” means an area consisting of a single reservoir or multiple reservoirs all grouped on, or related to, the same individual geological structural feature or stratigraphic condition. The field name refers to the surface area, although it may refer to both the surface and the underground productive formations;
“Formation” means a layer of rock which has distinct characteristics that differs from nearby rock;
“Gulf States Drill Region” means the area(s) where oil and gas leases, drilling and production rights, which are located in the Smackover Trend. The Smackover Trend extends from Texas to the Florida Panhandle along the Gulf Coast Region – both onshore and offshore. The Smackover Trend is a major oil and gas production formation in the Gulf States and the principal source of oil and gas. Like the Persian Gulf, the Smackover Trend was rock stratum formed by deposits from warm ocean waters covering the carbonate-evaporite basins in the southern Gulf States Region during the Upper Jurassic Period.
“Horizontal drilling” means a drilling technique used in certain formations where a well is drilled vertically to a certain depth and then drilled at a right angle within a specified interval;
“Identified drilling locations” means total gross (net) resource play locations that we may be able to drill on our existing acreage. A portion of our identified drilling locations constitute estimated locations based on our acreage and spacing assumptions. Actual drilling activities may change depending on the availability of capital, regulatory approvals, seasonal restrictions, natural gas and oil prices, costs, drilling results and other factors;
1
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
“Invested capital” means the future capital expenditures required to drill and complete a single well. When used in this filing in connection with descriptions of our rate of return, the calculation of “invested capital” assumes such capital expenditures are incurred in period one (with revenue and operating costs recognized until the economic end of a well’s life, at which time abandonment costs are recognized);
“LNG” means liquid natural gas;
“Mcf” means one thousand cubic feet of natural gas;
“MMBtu” means one million Btu;
“MMcf” means one million cubic feet of natural gas;
“Net acres” means the percentage of total acres an owner has out of a particular number of acres, or a specified tract. An owner who has 50% interest in 100 acres owns 50 net acres;
“Productive well” means a well that is found to be capable of producing hydrocarbons in sufficient quantities such that proceeds from the sale of the production exceed production expenses and taxes;
“Prospect” means a specific geographic area which, based on supporting geological, geophysical or other data and also preliminary economic analysis using reasonably anticipated prices and costs, is deemed to have potential for the discovery of commercial hydrocarbons;
“Proved developed reserves” means reserves that can be expected to be recovered through existing wells with existing equipment and operating methods;
“Proved reserves” means the estimated quantities of oil and natural gas which geological and engineering data demonstrate with reasonable certainty to be commercially recoverable in future years from known reservoirs under existing economic and operating conditions;
“Proved undeveloped reserves” or “PUDs” means proved reserves that are expected to be recovered from new wells on undrilled acreage or from existing wells where a relatively major expenditure is required for recompletion;
“Recompletion” means the process of re-entering an existing wellbore that is either producing or not producing and completing new reservoirs in an attempt to establish or increase existing production;
“Reservoir” means a porous and permeable underground formation containing a natural accumulation of producible oil and/or natural gas that is confined by impermeable rock or water barriers and is separate from other reservoirs;
“Resources” means quantities of oil and gas estimated to exist in naturally occurring accumulations. A portion of the resources may be estimated to be recoverable, and another portion may be considered to be unrecoverable. Resources include both discovered and undiscovered accumulations.
“Royalty interest” means an interest in an oil and gas lease that gives the owner of the interest the right to receive a portion of the production from the leased acreage (or of the proceeds of the sale thereof), but generally does not require the owner to pay any portion of the costs of drilling or operating the wells on the leased acreage. Royalties may be either landowner's royalties, which are reserved by the owner of the leased acreage at the time the lease is granted, or overriding royalties, which are usually reserved by an owner of the leasehold in connection with a transfer to a subsequent owner.
“Service well” means any well drilled or completed for the purpose of supporting production in an existing field. Specific purposes of service wells include gas injection, water injection, steam injection, air injection, salt-water disposal, water supply for injection, observation, or injection for in-situ combustion.
“Standardized measure” means the present value, discounted at 10% per year, of estimated future net revenues from the production of proved reserves, computed by applying sales prices used in estimating proved oil and gas reserves to the year-end quantities of those reserves in effect as of the dates of such estimates and held constant throughout the productive life of the reserves (except for consideration of future price changes to the extent provided by contractual arrangements in existence at year-end), and deducting the estimated future costs to be incurred in developing, producing and
2
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
abandoning the proved reserves (computed based on year-end costs and assuming continuation of existing economic conditions). Future income taxes are calculated by applying the appropriate year-end statutory federal and state income tax rate with consideration of future tax rates already legislated, to pre-tax future net cash flows, net of the tax basis of the properties involved and utilization of available tax carryforwards related to proved oil and gas reserves.
“Spacing” means the distance between wells producing from the same reservoir. Spacing is often expressed in terms of acres, e.g., 40-acre spacing, and is often established by regulatory agencies;
“Standardized measure” means discounted future net cash flows estimated by applying year-end prices to the estimated future production of year-end proved reserves. Future cash inflows are reduced by estimated future production and development costs based on period-end costs to determine pre-tax cash inflows. Future income taxes, if applicable, are computed by applying the statutory tax rate to the excess of pre-tax cash inflows over our tax basis in the natural gas and oil properties. Future net cash inflows after income taxes are discounted using a 10% annual discount rate;
“Undeveloped reserves” means Undeveloped reserves are reserves that are expected to be recovered from new wells on undrilled acreage, or from existing wells where a relatively major expenditure is required. Reserves on undrilled acreage shall be limited to those directly offsetting development spacing areas that are reasonably certain of production when drilled, unless evidence exists that establishes reasonable certainty of economic productivity at greater distances. Undrilled locations can be classified as having undeveloped reserves only if a development plan has been adopted indicating that they are scheduled to be drilled within five years, unless the specific circumstances justify a longer time. Under no circumstances shall estimates for undeveloped reserves be attributable to any acreage for which an application of fluid injection or other improved recovery technique is contemplated, unless such techniques have been proved effective by actual projects in the same reservoir or an analogous reservoir, or by other evidence using reliable technology establishing reasonable certainty.
“Unit” means the joining of all or substantially all interests in a reservoir or field, rather than a single tract, to provide for development and operation without regard to separate property interests. Also, the area covered by a unitization agreement;
“Unproved properties” means properties with no proved reserves.
“Wellbore” means the hole drilled by the bit that is equipped for natural gas production on a completed well. Also called well or borehole; and
“Working interest” means the right granted to the lessee of a property to explore for and to produce and own natural gas or other minerals. The working interest owners bear the exploration, development, and operating costs on either a cash, penalty, or carried basis.
The market data and certain other statistical information used throughout this Exhibit 99.1 are based on independent industry publications, government publications and other published independent sources. Some data is also based on our good faith estimates. Although we believe these third-party sources are reliable as of their respective dates, CoJax and Barrister have not independently verified the accuracy or completeness of this information. The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the section entitled “Risk Factor” in the Form 8-K. These and other factors could cause results to differ materially from those expressed in these publications.
Item 1. Barrister History and Description of Business. Barrister Energy, LLC is a Mississippi limited liability company, privately owned and is an independent oil company focused on acquiring, leasing, developing, and operating oil and gas properties in the U.S. Gulf Coast and Southeastern United States. Currently, Barrister has certain oil exploration rights in acreage in Southwest Alabama, in the Jurassic Shelf – Smackover Trend.
3
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
Barrister’s principal executive offices are located at 404 Short 7th Avenue, Laurel, Mississippi 39440. Barrister’s telephone number is (601) 426-0056.
Barrister was organized under the laws of the State of Mississippi on June 13, 2014.
Barrister’s only employees are persons employed as Managers or Officers. Barrister relies on independent contractors and consultants to conduct its operations. The current managers and officers of Barrister are disclosed below under “Managers and Officers of Barrister.”
Competition. Barrister Weaknesses. Barrister is undercapitalized to properly exploit its existing oil properties or acquire new oil and gas properties for exploitation. Barrister acquired its oil properties in June 2019 and has not expanded the production, acquired new oil properties or improved operations. Barrister is operating at a subsistence level of revenues and has insufficient cash flow or funding to grow its core business operations. As such, Barrister is not an active competitor or commercial presence even among local, small independent oil producers. Additional funding will be required to not only increase oil production but also to enhance distribution and marketing efforts.
Barrister Strengths. Barrister has a highly experienced interest owners (Members), who have significant prior experience in oil and gas production in the Gulf States region. Through the owners’ relationships, Barrister also has access to many experienced oil and gas engineers, drilling personnel and other professionals engaged in the oil and gas production business in the Gulf States region – all of whom can be engaged as contractors, consultants or possibly employees, subject to increased oil production and working capital.
Competitors of Barrister. There are many large, medium and small sized competitors in the Gulf States region (including off-shore drilling in the Gulf of Mexico) and adjacent areas which have extensive operational histories, experienced oil and gas industry management, established market share, profitable operations and extensive potential oil and gas fields or leases to exploit or the cash resources to explore new oil and gas fields. There is also an established oil and gas production industry in North Dakota and western Canada where fracking has made available significant oil and gas reserves in shale formations. Barrister cannot match the resources, whether financial, technical, manpower, size of proven crude oil reserves, and distribution channels, of our competition in the Gulf States region.
Marketing. Barrister will have the same marketing plan and efforts. As the operations subsidiary, CoJax’s marketing will be conducted by and through Barrister. Barrister markets its crude oil production, whether current or future, on a month to month basis.
Barrister Intellectual Property. Intellectual property is not key to its business as of June 1, 2020, other than protecting any trademarks, service marks or logos used in commerce. Barrister has intellectual property rights to its corporate name. Barrister has not registered any trademarks, service marks or logos and has no patent applications or registrations.
Government Regulation. Barrister’s oil exploration, production and storage activities are subject to federal, state and local regulation, and as these rules are subject to constant change or amendment, Barrister operations may be adversely affected by new or different government regulations, laws or court decisions applicable to its operations.
Crude oil and natural gas operations are subject to extensive federal, state and local government regulations, which may be changed from time to time. Matters subject to regulation include discharge permits for drilling operations, drilling bonds, reports concerning operations, the spacing of wells, unitization and pooling of properties and taxation. From time to time, regulatory agencies have imposed price controls and limitations on production by restricting the rate of flow of crude oil and natural gas wells below actual production capacity in order to conserve supplies of crude oil and natural gas. There are federal, state and local laws and regulations primarily relating to protection of human health and the environment applicable to the development, production, handling, storage, transportation and disposal of crude oil and natural gas, byproducts thereof and other substances and materials produced or used in connection with crude oil and natural gas operations. Barrister may inherit liability for environmental damages caused by previous owners of property it purchases or leases. As a result, Barrister may incur substantial liabilities to third parties or governmental entities. The implementation of new, or the modification of existing, laws or regulations could have a material adverse effect on Barrister.
4
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
Climate Change Regulation. Climate change continues to attract considerable public and scientific attention. As a result, numerous proposals have been made and are likely to continue to be made at the international, national, regional, and state levels of government to monitor and limit emissions of Greenhouse Gases or “GHGs”. While no comprehensive climate change legislation has been implemented at the federal level, the Environmental Protection Agency or “EPA” and states or groupings of states have pursued legal initiatives in recent years that seek to reduce GHG emissions through efforts that include consideration of cap-and-trade programs, carbon taxes, GHG reporting and tracking programs and regulations that directly limit GHG emissions from certain sources. In particular, the EPA has adopted rules under authority of the U.S. Clean Air Act of “CAA” that, among other things, establish certain permit reviews for GHG emissions from certain large stationary sources, which reviews could require securing permits at covered facilities emitting GHGs and meeting defined technological standards for those GHG emissions. The EPA has also adopted rules requiring the monitoring and annual reporting of GHG emissions from certain petroleum and natural gas system sources in the United States, including, among others, onshore production.
President Trump’s Administration has rolled back, canceled or sought to roll back or cancel numerous rules restricting GHGs in the energy industry. These efforts have been mostly challenged in court. On August 29, 2019, Trump Administration rolled back regulations of U.S. Environmental Protection Agency or “EPA” requiring oil and gas producers to monitor and fix methane leaks from wells, pipelines and storage facilities. IN December 2019, Trump Administration rolled back over 80 clean air, clean water and auto emissions standards and rules. In April 2020, American Petroleum Institute petitioned the Trump Administration and EPA to roll back all “non-essential” oil and gas producer regulations – mostly all regulations other than safety regulations, but including a delay on greenhouse gas reporting, flexibility on monitoring GHC sampling and analysis required for drinking water permits and add deferrals to pollution monitoring.
While these roll backs or elimination of regulation of crude oil production may reduce cost of operations in the short run, the general trend in developed world economies is beginning to favor elimination or reduction of fossil fuel as the primary basis for energy. Further, future global practices and regulation, including a possible reversal of regulatory roll backs by the Trump Administration if a Democrat wins the 2020 Presidential Election, could make the benefits of regulatory roll backs under the Trump Administration short lived and potentially more costly as a change back to prior, pre-Trump Administration regulatory schemes would impose new costs and burdens on crude oil production.
In addition to natural policy inclination of the Trump Administration to roll back environmental regulations, the Coronavirus/COVID-19 pandemic and March 2020 pricing war between Saudi Arabia and Russia has produced industry pressure on government regulators to defer or suspend many regulations on production, transportation, storage and use of fossil fuels.
Whether the roll back of environmental regulations to cap or reduce GHGs will continue or survive legal challenges, as well as the impact on these rollback efforts by Democratic Party taking control of the U.S. House of Representatives in 2019, is uncertain as of the date of this Exhibit 99.1. Company believes there is growing public support for the anti-GHG/environmental movement that may result in future changes in regulation, more anti-GHG rulings in courts and legal requirements for oil and gas production that may reduce the demand for oil and gas in the future, perhaps near future, as well as making oil and gas production more expensive and difficult in terms of regulation to conduct. The success of President Trump appointing conservative jurists to federal courts since 2017 presents another possible factor in future GHG regulation, which factor is not possible to ascertain in terms of impact on GHG regulation as of the date of this Exhibit 99.1. In December 2015, the United States joined the international community at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change in Paris, France that prepared an agreement requiring member countries to review and “represent a progression” in their intended nationally determined contributions, which set GHG emission reduction goals every five years beginning in 2020. This “Paris Agreement” was signed by the United States in April 2016 and entered into force in November 2016; however, this agreement does not create any binding obligations for nations to limit their GHG emissions. On June 1, 2017, President Donald Trump announced that the United States plans to withdraw from the Paris Agreement and to seek negotiations either to re-enter the Paris Agreement on different terms or to establish a new framework agreement. The Paris Agreement provides for a four-year exit date of November 2020. The United States’ adherence to the exit process and/or the terms on which the United States may re-enter the Paris Agreement or a separately negotiated agreement are unclear at this time.
5
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
The adoption and implementation of any international, federal or state legislation or regulations that require reporting of GHGs or otherwise restrict emissions of GHGs could result in increased compliance costs or additional operating restrictions and could have a material adverse effect on our business, financial condition, results of operations, and cash flows.
Increasing concentrations of GHG in the Earth’s atmosphere may in all likelihood and based on current and widespread scientific opinion produce climate changes that have significant, perhaps catastrophic, physical effects, such as increased frequency and severity of storms, droughts, floods and other climatic events. If any such climatic events were to occur, they could have an adverse effect on our financial condition and results of operations and the financial condition and operations of our end user customers and oil and gas product consumers. Climate changes may force radical, unexpected changes in regulation of GHG and energy industries like oil and gas.
Item 1A. Risk Factors. Risk Factors are set forth in the Form 8-K and incorporated herein by reference.
Item 2. Financial Information. The financial information required under this Item 2 is set forth in the financial statements attached to the Form 8-K and are incorporated herein by reference.
Item 3. Properties. Barrister’s principal executive office is located at 404 Short 7th Avenue, Laurel, Mississippi 39440. We have an agreement for use of office space on an as needed basis at no cost. The premises are suitable and adequate for Barrister’s current operations. Barrister does not own in fee simple any real property, excepting leasehold rights described below.
Description of Barrister Oil Properties and Oil Production Operations. The Company currently has a land package of approximately 700 acres in Southwest Alabama, in one contiguous land package. It also has two producing wells, a saltwater disposal well, a three-mile gas transmission line along with gathering systems and storage tanks for approximately 1,500 barrels.
Acquisition of Oil Properties. Barrister acquired its oil and gas exploration and production leases and rights and oil production equipment as well as assumed all underlying contracts and contractual obligations under a June 1, 2019 Purchase and Sale Agreement (“Purchase Agreement”) with Central Operating, LC, a Mississippi limited liability company, (“COP”). The purchase price for the acquired assets (which are listed in an attachment to the Purchase Agreement, which Purchase Agreement is attached as Exhibit 2.2.0 to the Form 8-K report) was a two-year promissory note bearing no interest and in principal amount of $2.7 million (“Debt”). The promissory note’s principal is due June 1, 2021 in a lump sum payment, and presents a significant financial burden for CoJax, which is assuming the Debt. The Debt is also secured by all acquired assets under a Security Agreement, dated June 1, 2019, and attached to the Purchase Agreement with the promissory note. If payment in full of the principal is not paid on June 1, 2021, COP can levy and take the acquired assets from Barrister and CoJax, as assignee and sue for damages. A default on the promissory note would in all likelihood result in the bankruptcy or insolvency of CoJax and Barrister.
Under the Purchase Agreement, COP retained financial benefit of oil produced prior to and on June 1, 2019, and Barrister owned all post June 1, 2019 oil production. Barrister has until August 31, 2019 to challenge any title defects affecting acquired assets. Barrister asserted no title defects. COP conveyed by Special Warranty of Title in respect of acquired assets “as is and with all faults” on date of purchase, but the warranty does not cover fitness of acquired assets for any specific purpose, accuracy of oil reserves or future productivity of acquired assets, hazardous material liabilities. Barrister waived, released, held harmless and indemnified COP and its affiliates from all liabilities associated with or arising from the acquired assets. Purchase Agreement contains usual and customary contract provisions for an oil exploration and production rights acquistion agreement. The foregoing summary is qualified by reference to the Purchase Agreement and its exhibits and attachments.
Reserve Value. The Company has an SEC Qualified Independent Petroleum Reserve report that states it has a PV-10 Reserve Value of approximately $45.5 million. The report was produced in December 2019 by Nova Resource, Inc., and includes assumptions of PADD3 Gulf Coast Pricing of $62.63 per barrel of Light Louisiana Sweet, and for Proved Un-Developed reserves of five additional wells that remain to be drilled on the existing acreage. The Engineer’s Reserve report is included in it’s entirety in Exhibit 99.1.1
6
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
Energy Production in Alabama. The State of Alabama is located in the Southeastern United States alongside the Gulf of Mexico and has been producing petroleum since 1940s. While the peak of oil production in Alabama was in the 1980s, according to the U.S. Department of Energy’s Energy Information Administration, as of 2017, Alabama was ranked 16 in production of oil and natural gas combined, and produced more than 4.7 millions of barrels of oil that year. Alabama's major oil- and gas-producing regions are located in the western part of the state.
The Smackover Trend. The Smackover trend is a belt of carbonate, evaporite, and clastic rocks of Late Jurassic age that rims the Gulf Coast of the United States from Texas, up to Arkansas, throughout Louisiana, Mississippi, Southwest Alabama, and all the way to the Florida panhandle. Stratigraphic and geochemical data indicate that the oil and gas were generated from algal-rich lime mudstones. It was named after the Smackover oil field, which was discovered in Union County, Arkansas in 1937.
Current Drilling on Barrister Energy Drill Region. There are 3 wells in the Barrister Energy Drill Region, which have produced oil and gas since 1996. Currently two wells are in production and one is used as a saltwater disposal well. We own approximately 95% working interest with a 79% net revenue interest as of June 1, 2019, the acquisition date for Barrister. The two producers are Nall 16-3 #1 and the Nettles 9-12 #1.
The historical 8/8th production (gross production) of these oil wells for the fiscal years 1996 – 2015, 2016, 2017, 2018 and 2019 are summarized in the table below.
Barrister DRILL REGION PRODUCTION | ||
Nall 16-3 #1 and Nettle 9-12 #1 | ||
Year | 8/8th Total Oil Produced (bbl) | Total Gas Produced (mcf) |
1996 – 2015 * | 225,300 | 53,175 |
2016 * | 1335 | 0 |
2017 * | 4371 | 0 |
2018 * | 2919 | 0 |
2019 * | 1403 | 0 |
Total | 235,328 | 53,175 |
* Historical production prior to acquisition of rights by COJAX. | ||
Disclosure of Reserves
Summary of Oil and Gas Reserves at December 31, 2019
The table below summarizes the oil-equivalent proved reserves in each geographic area and by product type for consolidated subsidiaries. The Company has reported proved reserves on the basis of the average of the first day-of-the-month price for each month during the last 12-month period. Gas is converted to an oil-equivalent basis at six million cubic feet per one thousand barrels. No major discovery or other favorable or adverse event has occurred since December 31, 2019, that would cause a significant change in the estimated proved reserves as of that date.
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| Crude | Natural Gas |
| Synthetic | Natural | Oil-Equivalent |
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| Oil | Liquids | Bitumen | Oil | Gas | Basis |
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| (bbls) | (bbls) | (bbls) | (bbls) | (cubic ft) | (bbls) |
Proved Reserves |
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| Developed |
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| Consolidated Subsidiaries |
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| United States | 127,520 | - | - | - | - | 127,520 | |
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| Total Consolidated | 127,520 | - | - | - | - | 127,520 |
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| Undeveloped |
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7
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
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| Consolidated Subsidiaries |
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| United States | 2,978,136 | - | - | - | - | 2,978,136 | |
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| Total Consolidated | 2,978,136 | - | - | - | - | 2,978,136 |
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Total Proved Reserves | 3,105,656 | - | - | - | - | 3,105,656 | ||||
Proved Undeveloped Reserves
At December 31, 2019, approximately 2,978,136 oil-equivalent barrels (OEB) of CENTRAL’s proved reserves were classified as proved undeveloped. This represents 95 percent of the 3,105,656 OEB reported in proved reserves.
Oil and Gas Production, Production Prices and Production Costs
Oil and Gas Production
The table below summarizes production by final product sold and by geographic area for the last four years.
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| 2016 | ||||
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| (8/8th barrels of oil produced at year end) | ||||||||||
Crude oil and natural gas liquids production | Crude Oil | NGL |
| Crude Oil | NGL |
| Crude Oil | NGL |
| Crude Oil | NGL | |||
| Consolidated Subsidiaries |
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|
|
|
| ||
|
| United States | 1,403 | - |
| 2,919 | - |
| 4,371 | - |
| 1,335 | - | |
|
|
| Total Consolidated Subsidiaries | 1,403 | - |
| 2,919 | - |
| 4,371 | - |
| 1,335 | - |
Total crude oil and natural gas liquids production | 1,403 | - |
| 2,919 | - |
| 4,371 | - |
| 1,335 | - | |||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bitumen production |
|
|
|
|
|
|
|
|
|
|
| |||
| Consolidated Subsidiaries |
|
|
|
|
|
|
|
|
|
|
| ||
|
| United States | - | - |
| - | - |
| - | - |
| - | - | |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Synthetic oil production |
|
|
|
|
|
|
|
|
|
|
| |||
| Consolidated Subsidiaries |
|
|
|
|
|
|
|
|
|
|
| ||
|
| United States | - | - |
| - | - |
| - | - |
| - | - | |
Total liquids production | - | - |
| - | - |
| - | - |
| - | - | |||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (8/8th barrels of oil produced at year end) | ||||||||||
Natural gas production available for sale |
|
|
|
|
|
|
|
|
|
|
| |||
| Consolidated Subsidiaries |
|
|
|
|
|
|
|
|
|
|
| ||
|
| United States | - |
|
| - |
|
| - |
|
| - |
| |
|
|
| Total Consolidated Subsidiaries | - |
|
| - |
|
| - |
|
| - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total natural gas production available for sale | - |
|
| - |
|
| - |
|
| - |
| |||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| (thousands of oil-equivalent barrels at year end) | ||||||||||
Oil-equivalent production | - |
|
| - |
|
| - |
|
| - |
| |||
Production Prices and Production Costs
The table below summarizes average production prices and average production costs by geographic area and by product type for the last three years.
|
|
|
| United States |
| Total |
During 2019 |
|
|
| |||
| Consolidated Subsidiaries |
|
|
| ||
|
| Average production prices |
|
|
| |
|
|
| Crude oil, per barrel | 58.88 |
| 58.88 |
|
|
| NGL, per barrel | - |
| - |
|
|
| Natural gas, per thousand cubic feet | - |
| - |
|
|
| Bitumen, per barrel | - |
| - |
8
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
|
|
| Synthetic oil, per barrel | - |
| - |
|
| Average production costs, per oil-equivalent barrel - total | 32.13 |
| 32.13 | |
|
| Average production costs, per barrel - bitumen | - |
| - | |
|
| Average production costs, per barrel - synthetic oil | - |
| - | |
|
|
|
|
| ||
During 2018 |
|
|
| |||
| Consolidated Subsidiaries |
|
|
| ||
|
| Average production prices |
|
|
| |
|
|
| Crude oil, per barrel | 66.06 |
| 66.06 |
|
|
| NGL, per barrel | - |
| - |
|
|
| Natural gas, per thousand cubic feet | - |
| - |
|
|
| Bitumen, per barrel | - |
| - |
|
|
| Synthetic oil, per barrel | - |
| - |
|
| Average production costs, per oil-equivalent barrel - total | 33.45 |
| 33.45 | |
|
| Average production costs, per barrel - bitumen | - |
| - | |
|
| Average production costs, per barrel - synthetic oil | - |
| - | |
|
|
|
|
|
|
|
During 2017 |
|
|
| |||
| Consolidated Subsidiaries |
|
|
| ||
|
| Average production prices |
|
|
| |
|
|
| Crude oil, per barrel | 59.52 |
| 59.52 |
|
|
| NGL, per barrel | - |
| - |
|
|
| Natural gas, per thousand cubic feet | - |
| - |
|
|
| Bitumen, per barrel | - |
| - |
|
|
| Synthetic oil, per barrel | - |
| - |
|
| Average production costs, per oil-equivalent barrel - total | 40.37 |
| 40.37 | |
|
| Average production costs, per barrel - bitumen | - |
| - | |
|
| Average production costs, per barrel - synthetic oil | - |
| - | |
Average production prices have been calculated by using sales quantities from the Company’s own production as the divisor. Average production costs have been computed by using net production quantities for the divisor. The volumes of crude oil and natural gas liquids (NGL) production used for this computation are shown in the oil and gas production table. The volumes of natural gas used in the calculation are the production volumes of natural gas available for sale and are also shown. The natural gas available for sale volumes may be different from those shown in the reserves table in the “Oil and Gas Reserves” part of the “Supplemental Information on Oil and Gas Exploration and Production Activities” portion of the Financial Sections of this report due to volumes consumed or flared. Gas is converted to an oil-equivalent basis at six million cubic feet per one thousand barrels.
Oil and Gas Properties, Wells, Operations and Acreage
Gross and Net Productive Wells
|
|
|
| Year-End 2019 |
| Year-End 2018 |
| Year-End 2017 | |||||||||
|
|
|
|
|
|
| Oil | Gas |
| Oil | Gas | ||||||
|
|
|
| Gross | Net | Gross | Net |
| Gross | Net | Gross | Net |
| Gross | Net | Gross | Net |
Gross and Net Productive Wells |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |||
| Consolidated Subsidiaries |
|
|
|
|
|
|
|
|
|
|
|
|
|
| ||
|
| United States | 3.0 | 1.8 | - | - |
| 3.0 | 1.8 | - | - |
| 3.0 | 1.8 | - | - | |
|
|
| Total Consolidated Subsidiaries | 3.0 | 1.8 | - | - |
| 3.0 | 1.8 | - | - |
| 3.0 | 1.8 | - | - |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total gross and net productive wells | 3.0 | 1.8 | - | - |
| 3.0 | 1.8 | - | - |
| 3.0 | 1.8 | - | - | |||
There were 3 gross and 1.8 net operated wells at December 31, 2019, December 31, 2018 and December 31, 2017.
Gross and Net Developed Acreage
|
|
|
| Year-End 2019 |
| Year-End 2018 |
| Year-End 2017 | ||||||
|
|
|
| Gross |
| Net |
| Gross |
| Net |
| Gross |
| Net |
|
|
|
| (acres) | ||||||||||
9
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
Gross and Net Developed Acreage |
|
|
|
|
|
|
|
|
|
|
| |||
| Consolidated Subsidiaries |
|
|
|
|
|
|
|
|
|
|
| ||
|
| United States | 370 |
| 352 |
| 370 |
| 352 |
| 370 |
| 352 | |
|
|
| Total Consolidated Subsidiaries | 370 |
| 352 |
| 370 |
| 352 |
| 370 |
| 352 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total gross and net developed acreage | 370 |
| 352 |
| 370 |
| 352 |
| 370 |
| 352 | |||
Separate acreage data for oil and gas are not maintained because, in many instances, both are produced from the same acreage.
|
|
|
| Year-End 2019 |
| Year-End 2018 |
| Year-End 2017 | ||||||
|
|
|
| Gross |
| Net |
| Gross |
| Net |
| Gross |
| Net |
|
|
|
| (acres) | ||||||||||
Gross and Net Undeveloped Acreage |
|
|
|
|
|
|
|
|
|
|
| |||
| Consolidated Subsidiaries |
|
|
|
|
|
|
|
|
|
|
| ||
|
| United States | 700 |
| 700 |
| 2,992 |
| 2,244 |
| 2,992 |
| 2,244 | |
|
|
| Total Consolidated Subsidiaries | 700 |
| 700 |
| 2,992 |
| 2,244 |
| 2,992 |
| 2,244 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total gross and net undeveloped acreage | 700 |
| 700 |
| 2,992 |
| 2,244 |
| 2,992 |
| 2,244 | |||
Gross and Net Undeveloped Acreage
Barrister’s investment in developed and undeveloped acreage is comprised of numerous leases. The terms and conditions under which the Company maintains exploration and/or production rights to the acreage are property-specific, contractually defined and vary significantly from property to property. Work programs are designed to ensure that the exploration potential of any property is fully evaluated before expiration. In some instances, the Company may elect to relinquish acreage in advance of the contractual expiration date if the evaluation process is complete and there is not a business basis for extension. In cases where additional time may be required to fully evaluate acreage, the Company has generally been successful in obtaining extensions. The scheduled expiration of leases and concessions for undeveloped acreage over the next three years is not expected to have a material adverse impact on the Company.
Item 4. Security Ownership of Certain Beneficial Owners and Management. The following table shows the ownership of Membership Interests of Barrister as of June 1, 2020. There are no options or similar instruments issued to acquire Membership Interests of Barrister.
Name of Member | Percentage of issued Membership Interests owned based on Capital Accounts | Address of Member |
Andrew S. Cardwell(1) | 5.00% | 404 Short 7th Avenue, Laurel, Mississippi 39440 |
Roger McLeod | 80.00% | 1050 Woodland Hills Drive, Laurel, Mississippi 39440 |
Jeffrey Delancey | 8.33% | 867 Gates Road, Columbia, Mississippi 39429 |
Lamar Resources, LLC | 6.67% | 7017 Tilbury Court, McKinney, Texas 75071 |
(1)Andrew S. Cardwell is the Managing Member of Barrister.
(2)Lamar Resources, LLC is owned by Marty Rutland and his spouse of McKinney, Texas.
Item 5. Directors and Officers/Manager. Andrew S. Cardwell, Age 37, is the sole Manager of Barrister. There are no other officers, managers or employees. Barrister engages independent contractors or vendors to provide any services or functions not handled by Mr. Cardwell. The Members appoint the Manager of the Company. Absent appointment of a Manager, Barrister would be managed by its Members. The Manager enjoys all powers granted under the Mississippi Limited Liability Company to a Manager to manage Barrister, subject to the limitation that he cannot sign and bind Barrister under any agreement or obligation in excess of $1 million.
10
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
Business and Related Experience. Mr. Cardwell is a licensed lawyer engaged in the private practice of law in Laurel, Mississippi. He is licensed to practice law in Mississippi and Texas. Mr. Cardwell’s legal practice focuses on real estate, estate planning, bankruptcy, small business law and energy law. He received his J.D. from Mississippi College School of Law and a B.S. from Mississippi College. Prior to his law practice, Mr. Cardwell worked as an Oil & Gas Title Landman in Jackson, Mississippi and was a member of the Mississippi Association of Petroleum Landmen.
Item 6. Executive Compensation.
Barrister. Since its organization, there has been no compensation paid to or owed to any members or Manager of Barrister for services. Barrister has no employment agreements.
Barrister has no non-cash incentive compensation or equity-based compensation plans.
Item 7. Certain Relationships and Related Transactions. There is no family relationship between the Members or between the Manager and any Member.
Jeffrey Delancey was Chief Executive Officer and a Director of CoJax Oil and Gas Corporation from May 15, 2018 until January 21, 2020. Mr. Delancey voluntarily resigned. He received no compensation during his service.
Barrister Conflict of Interest and Related Party Policy: Barrister has no conflict of interest and related party policy. Barrister will be subject to CoJax Code of Ethics upon becoming a wholly owned subsidiary of CoJax.
Item 8. Legal Proceedings - Barrister: There are no material pending legal proceedings as defined by Item 103 of Regulation S-K promulgated under the Barrister’s property is the subject, other than ordinary routine litigation incidental to CoJax’s business.
Item 9. Market Price of, and Dividends on, the Registrant’s Common Equity and Related Stockholder Matters. Barrister Membership Interests are not publicly traded.
Distributions. Under the revised Operating Agreement for Barrister, dated May 14, 2020 and filed as an exhibit to the Form 8-K, (“revised Operating Agreement”) provides for distributions of profits and losses as follows: Except as may be required by Section 704(c) of the Internal Revenue Code and Treasury Regulation 1.704-1(b)(2)(iv)(f), the net profits or the net losses (and any separately stated items, including without limitation, depreciation, amortization and tax credits) of Barrister are be allocated to the Members, pro rata in accordance with their Membership Interests in the Barrister (as calculated by the Member’s capital account).
Information to Members. Within ninety (90) days after the end of each calendar year, Barrister provides each Member at any time during the year then ended the balance sheet of the Barrister as of the end of such year and statements of operations and changes in Members' capital contributions. The information shall also set forth distributions to the Members for the period covered thereby and the amount of any distributions released from reserves established in prior periods.
No Certificates. Membership Interests are not evidenced by certificates.
Item 10. Recent Sales of Unregistered Securities. Barrister issued Membership Interests to Andrew Cardwell as part of the formation of Barrister on June 13, 2014. The issuance was exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended, and under State of Mississippi securities laws.
On April 1, 2019, Barrister issued Membership Interests to Roger McLeod, Jeffrey Delancey and Lamar Resources, LLC as new Members, which issuances were exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended, and under State of Mississippi securities laws. The issuances on April 1, .2019 were:
11
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
Name of Member | Percentage of issued Membership Interests owned based on Capital Accounts | Address of Member | Consideration Paid |
Roger McLeod | 80.00% | 1050 Woodland Hills Drive, Laurel, Mississippi 39440 | Services provided |
Jeffrey Delancey | 8.33% | 867 Gates Road, Columbia, Mississippi 39429 | Services provided |
Lamar Resources, LLC | 6.67% | 7017 Tilbury Court, McKinney, Texas 75071 | Services provided |
After the issuances of Membership Interests, Andrew S. Cardwell’s ownership of Barrister was reduced from 100% to 5%.
Item 11. Securities to be Registered. Not applicable.
Item 12. Indemnification of Directors and Officers. Under the revised Operating Agreement:
(a) Limitation of Liability. No Member (when not acting in violation of the Operating Agreement or applicable law) shall have any liability to Barrister or the Members for any losses sustained or liabilities incurred as a result of any act or omission of such Member in connection with the conduct of the business of Barrister. Except as required by Mississippi Code of 1972, as amended, Barrister’s debts, obligations and liabilities, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of Barrister, and no Member shall be personally liable for any such debt, obligation or liability of Barrister solely by reason of being a Member. No Member shall be liable for the debts, obligations or liabilities of Barrister, including under a judgment or order of a court; and
(b) Indemnification. Barrister shall indemnify any current or former Member, Manager or Officer to the fullest extent permitted by Section 79-29-110 of the Mississippi Code of 1972, as amended, including through the purchase of insurance, against expenses, judgments and other losses arising out of their status as a Member, Manager or officer, provided that the Member, Manager or officer has met the appropriate standard of conduct as set forth by law, in the interpretation of the Members. Any indemnification hereunder shall be satisfied only out of the assets of Barrister, and the Members shall not be subject to personal liability by reason of the indemnification provisions under the revised Operating Agreement.
Item 13. Financial Statements and Supplementary Data. The required information is included in the financial statements attached to the Form 8-K.
Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosures.
Barrister has had no disagreements with its accountants on accounting and financial disclosures.
Item 15. Financial Statements and Exhibits.
Financial Statements by this item will be filed by amendment not later than 71 calendar days after the date that this initial report on Form 8-K was filed with the Commission.
Exhibits are attached to this form 8-K.
12
Exhibit 99.1.1. Form 10 Information for Barrister Energy, LLC
13
Exhibit 99.2 Barrister Energy, LLC | List of Leases
Attached to and made a part of that certain assignment dates effective June 1st, 2019 by and between Central Operating, LLC as Assignor and Barrister Energy, LLC as Assignee
Lessor | MOSLEY, MARREL CLIFTON | Lessor | BYRD, ARTHURINE ET AL | Lessor | CHAVERS, MILDRED E |
Lessee | WALTER L JOHNSON | Lessee | WALTER L JOHNSON | Lessee | FINA OIL & CHEMICAL |
Dated | AUGUST 11, 1993 | Dated | AUGUST 10, 1993 | Dated | APRIL 18, 1991 |
Recorded | BOOK 486 PAGE 273 | Recorded | BOOK 486 PAGE 304 | Recorded | BOOK 407 PAGE 304 |
Lessor |
NALL, ALFRED E |
Lessor |
MURPHY, MAX H ET UX |
Lessor |
SILCOX, SHANE |
Lessee | WALTER L JOHNSON | Lessee | WALTER L JOHNSON | Lessee | FINA OIL & CHEMICAL |
Dated | AUGUST 10, 1993 | Dated | SEPTEMBER 15, 1993 | Dated | APRIL 18, 1991 |
Recorded | BOOK 486 PAGE 276 | Recorded | BOOK 486 PAGE 312 | Recorded | BOOK 407 PAGE 301 |
Lessor |
EXCEL, TOWN OF |
Lessor |
KIRKLAND, REO JR |
Lessor |
MOSLEY, ISABELLE L ET AL |
Lessee | WALTER L JOHNSON | Lessee | WALTER L JOHNSON | Lessee | FINA OIL AND CHEMICAL |
Dated | AUGUST 18, 1993 | Dated | SEPTEMBER 21, 1993 | Dated | APRIL 18, 1991 |
Recorded | BOOK 486 PAGE 320 | Recorded | BOOK 486 PAGE 315 | Recorded | BOOK 407 PAGE 296 |
Lessor |
JETER, JAMES H ET UX |
Lessor |
MELTON, H GERALD ET UX |
Lessor |
MURPHY, EVELYN JONES ET VI |
Lessee | WALTER L JOHNSON | Lessee | WALTER L JOHNSON | Lessee | WALTER L. JOHNSON |
Dated | AUGUST 10, 1993 | Dated | MAY 2, 1994 | Dated | SEPTEMBER 15, 1995 |
Recorded | BOOK 486 PAGE 279 | Recorded | BOOK 502 PAGE 289 | Recorded | BOOK 561 PAGE 89 |
Lessor |
HOLDER, WILLA DEAN H |
Lessor |
SCRUGGS, BILLY L ET UX |
|
|
Lessee | WALTER L JOHNSON | Lessee | W. B. DICKERSON JR |
|
|
Dated | JULY 16, 1993 | Dated | JUNE 8, 1992 |
|
|
Recorded | BOOK 486 PAGE 282 | Recorded | BOOK 440 PAGE 183 |
|
|
Lessor |
MOSLEY, GEORGE EDWARD ET U |
Lessor |
JOHNSON, JERRY |
|
|
Lessee | WALTER L JOHNSON | Lessee | WALTER L JOHNSON |
|
|
Dated | AUGUST 10, 1993 | Dated | AUGUST 3, 1995 |
|
|
Recorded | BOOK 486 PAGE 284 | Recorded | BOOK 523 PAGE 225 |
|
|
Lessor |
NETTLES, JEFF |
Lessor |
JOHNSON, MELVIN D |
|
|
Lessee | WALTER L JOHNSON | Lessee | WALTER L JOHNSON |
|
|
Dated | AUGUST 11, 1993 | Dated | AUGUST 3, 1995 |
|
|
Recorded | BOOK 486 PAGE 287 | Recorded | BOOK 523 PAGE 227 |
|
|
Lessor |
NETTLES, ANN B ET VIR |
Lessor |
BROWN, JEFFREY L ET AL |
|
|
Lessee | WALTER L JOHNSON | Lessee | WALTER L JOHNSON |
|
|
Dated | AUGUST 11, 1993 | Dated | AUGUST 3, 1995 |
|
|
Recorded | BOOK 486 PAGE 290 | Recorded | BOOK 523 PAGE 238 |
|
|
Lessor |
CHAVERS, MILDRED E |
Lessor |
CHAMPION INTERNATIONAL CO |
|
|
Lessee | WALTER L JOHNSON | Lessee | ENERGY DEVELOPMENT |
|
|
Dated | JULY 20, 1993 | Dated | JANUARY 15, 1995 |
|
|
Recorded | BOOK 486 PAGE 296 | Recorded | BOOK 526 PAGE 94 |
|
|
Lessor |
ZION REST CHURCH |
Lessor |
INTERNATIONAL PAPER CO |
|
|
Lessee | WALTER L JOHNSON | Lessee | ENERGY DEVELOPMENT |
|
|
Dated | AUGUST 4, 1993 | Dated | DECEMBER 27, 1994 |
|
|
Recorded | BOOK 486 PAGE 300 | Recorded | BOOK 527 PAGE 98 |
|
|
Lessor |
MANNING, BETTY C ET VIR |
Lessor |
RUDY RESOURCES LIMITED PA |
|
|
Lessee | WALTER L JOHNSON | Lessee | ENERGY DEVELOPMENT |
|
|
Dated | JUNE 21, 1993 | Dated | JANUARY 15, 1995 |
|
|
Recorded | BOOK 491 PAGE 67 | Recorded | BOOK 529 PAGE 06 |
|
|
Lessor |
COLEMAN, JAMES C ET UX |
Lessor |
SCOTT PAPER COMPANY |
|
|
Lessee | WALTER L. JOHNSON | Lessee | ENERGY DEVELOPMENT |
|
|
Dated | JUNE 23, 1993 | Dated | JANUARY 15, 1995 |
|
|
Recorded | BOOK 491 PAGE 65 | Recorded | BOOK 529 PAGE 08 |
|
|
1
Exhibit 99.2 Barrister Energy, LLC | List of Leases
Attached to and made a part of that certain assignment dates effective June 1st, 2019 by and between Central Operating, LLC as Assignor and Barrister Energy, LLC as Assignee
Contract ID | Lessor | Recording Info State | County | SEC | TWP | RNG | Legal Description |
ALPX.16.001.LSE |
Alfred E. Nall et u |
5.0000 Page 9, Book 806 AL |
Monroe |
16 |
5N |
7E |
4 ac in SE cor SWSE; 1 ac in SW cor SWSE |
ALPX.16.002.LSE | Alfred E. Nall, Jr. | 35.8000 Page 11, Book 806 AL | Monroe | 16 | 5N | 7E | N2 SESE Less 1 ac in NW corner; S2 SESE Less 3.2 ac in SW cor |
ALPX.16.003.LSE | Donna Nall Salter | 35.0000 Page 13, Book 806 AL | Monroe | 16 | 5N | 7E | W2 SWSE Less 1 ac in SW corner; E2 SWSE Less 4 ac in SE corner |
ALPX.16.004.LSE | Louise B. Melton | 20.0000 Page 15, Book 806 AL | Monroe | 16 | 5N | 7E | 1 ac in SW cor SWSE W2 SWSE Less 1 ac in SW cor |
ALPX.16.005.LSE | Ronnie R. Jordan | 70.0000 Page 406, Book 802 AL | Monroe | 16 | 5N | 7E | W2 SW Less 4 Tracts;see lease for complete description. |
ALPX.16.006.LSE | Jimmy R. Frost | 1.0000 Page 21, Book 806 AL | Monroe | 16 | 5N | 7E | 1 ac in NW corner of SESE |
ALPX.16.007.LSE | William T. Caylor | 3.2000 Page 17, Book 806 AL | Monroe | 16 | 5N | 7E | 2.2 ac in S2 of SESE 1 ac in SW corner of SESE |
ALPX.16.008.LSE | Sandy Dunnavant | 1.0000 Page 19, Book 806 AL | Monroe | 16 | 5N | 7E | 1 ac in NW corner of SESE |
ALPX.16.009.LSE | Shane Silcox et u | 25.0000 AL | Monroe | 16 | 5N | 7E | Part of SWNE |
ALPX.16.010.LSE | Freida Wiggins et | 56.0000 AL | Monroe | 16 | 5N | 7E | Part of SWNE & Part of SENE & Part of NENE |
ALPX.16.011.LSE | H. Gerald Melton | 78.6000 Page 303, Book 804 AL | Monroe | 16 | 5N | 7E | E2 SW,Less & except a parcel,see lease for complete description |
ALPX.16.012.LSE |
Billy Scruggs et u |
80.0000 Page 528, Book 803 AL |
Monroe |
16 |
5N |
7E |
N2 SE |
ALPX.16.013.LSE | L.T. Wiggins et ux | 1.0000 AL | Monroe | 16 | 5N | 7E | SE corner of N2 of SENE |
ALPX.17.001.LSE | W.J. Martin, Jr. | 80.0000 Page 399, Book 802 AL | Monroe | 17 | 5N | 7E | NE1/4 OF SW1/4;and SE1/4 of NW1/4 |
ALPX.17.002.LSE | Edward Nelson M | 71.3300 Page 396, Book 802 AL | Monroe | 20 | 5N | 7E | N1/3 NWNE;N1/3 NENW;E1/2NENE S1/3 SWSE;S1/3 SESW Less 2 acres in SW corner |
ALPX.17.003.LSE | Annabel J. White, | 133.2200 Page 401, Book 802 AL | Monroe | 17 | 5N | 7E | SENE & NESE & N2 SESE Less tracts;see full description on lease. |
|
|
|
| 20 | 5N | 7E | Metes & Bounds Tract,see lease for fulldescription. W2 SWNE Less 3 ac;also |
|
|
|
| 21 | 5N | 7E | W2 NWSE,see lease for complete description. |
ALPX.17.006.LSE | Hazel Norris | 89.3700 Page 409, Book 802 AL | Monroe | 17 | 5N | 7E | SWSW Less 2 Tracts;N2/3 SWSE Less tract & N 2/3 SESW |
2
Exhibit 99.2 Barrister Energy, LLC | List of Leases
Attached to and made a part of that certain assignment dates effective June 1st, 2019 by and between Central Operating, LLC as Assignor and Barrister Energy, LLC as Assignee
ALPX.17.007.LSE | Bennie C. Norris | 1.0000 Page 412, Book 802 AL | Monroe | 17 | 5N | 7E | Metes & Bounds Tract in SWSW |
ALPX.17.008.LSE | Danny L. Everette | 1.0000 Page 414, Book 802 AL | Monroe | 17 | 5N | 7E | Metes & Bounds Tract in SWSW |
ALPX.17.009.LSE | Garilyn Blanton | 1.6300 Page 416, Book 802 AL | Monroe | 17 | 5N | 7E | Metes & Bounds Tract in SWSW |
ALPX.17.010.LSE | Annabel Wallet v | 3.0000 Page 418, Book 802 AL | Monroe | 17 | 5N | 7E | Metes & Bounds Tract in NESE |
ALPX.20.001.LSE | Marlene B. Grissette | 27.0000 AL | Monroe | 20 | 5N | 7E | 27 ac tract in SW cor of NENW,NWNW |
ALPX.20.002.LSE | Roger W. Bayles, | 9.5000 AL | Monroe | 20 | 5N | 7E | 9.5 acs start SE corner of W2 of NENE |
ALPX.21.001.LSE | Audry O. Melton e | 45.5900 AL | Monroe | 21 | 5N | 7E | 9.59 ac tract in NENE |
|
|
|
| 21 | 5N | 7E | NENW less two tracts |
ALPX.21.002.LSE | Brenda Andrews | 2.7800 AL | Monroe | 21 | 5N | 7E | 2.78 ac tract in S2 of NENW |
ALPX.21.003.LSE | Deanna Andrews | 0.8700 AL | Monroe | 21 | 5N | 7E | .87 ac tract in NE corner NENW |
ALPX.21.004.LSE | Mitchell W. Jordan | 38.7100 Page 404, Book 802 AL | Monroe | 21 | 5N | 7E | E2 SWNE Less 3 ac; also E2 NWSE;see lease for complete description. |
ALPX.21.005.LSE | Alfred E. Nall,Life | 40.0000 AL | Monroe | 21 | 5N | 7E | NWNE |
ALPX.21.006.LSE | Alfred E, Nall, Jr., | 33.0000 AL | Monroe | 21 | 5N | 7E | S2 NENE Less 50' strip across NS of SWNENE; NENENE; 50' strip across NS of NWNENE |
ALPX.21.007.LSE | Louise B. Melton | 33.0000 AL | Monroe | 21 | 5N | 7E | S2 NENE Less 50' strip across NS of SWNENE; NENENE; 50' strip across NS of NWNENE |
3
Exhibit 99.2 Barrister Energy, LLC | List of Leases
Attached to and made a part of that certain assignment dates effective June 1st, 2019 by and between Central Operating, LLC as Assignor and Barrister Energy, LLC as Assignee
Permit |
API |
Well Name | Current Operator | Date Approved |
Section |
TWP Num |
TWP Dir |
Rng Num |
Rng Dir |
DU Desc |
County |
Well Type |
10904-SW |
D-0- 1099200000000 |
NALL 16-6 #1 |
John McCool, dba Edwards Oil Company |
5/30/2000 |
16 |
5 |
N |
7 |
E |
|
Monroe |
SWD |
10604-B-1 | 10992000000.00 | NALL 16-3 #1 ST | John McCool, dba Edwards Oil Company | 4/18/1996 | 16 | 5 | N | 7 | E | SW/4 SE/4, SE/4 SW/4 S9 & NW/4 NE/4, NE/4 NW/4 S16 SEE PLAT FOR ADDITONAL 12- ACRE TRACT ADDED BY #96-121 | Monroe | OIL |
10904 |
10992000000.00 |
NALL 16-6 #1 |
|
8/29/1995 |
16 |
5 |
N |
7 |
E | SE/4 NW/4, NE/4 SW/4, SW/4 NE/4, NW/4 SE/4 |
Monroe |
OIL |
4
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
NOVA RESOURCE, INC.
Central Operating, LLC
Estimated
Future Reserves and Income
Attributable to Certain
Leasehold and Royalty Interests
In
Monroe County, Alabama
SEC Parameters
As of
Evaluation Date: December 31, 2019
Effective Date: December 01, 2019
\s\ Joseph V. Rochefort
Joseph V. Rochefort QRE
CPG # 3358; CGP # 90
QRE CT51-101 President
NOVA RESOURCE INCORPORATED Texas Corporation 01605143-00
NOVA RESOURCE 1NCOROLEUM CONSULTANT,
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
December 31, 2019 page 1 of 17
1
Central Operating, LLC P. 0. Box 20205
Laurel, Mississippi 39442
601-426-9902
Gentlemen:
At the request of Central Operating, LLC (CO), Nova Resource, Inc.(Nova) has conducted its own "Certified SEC Reserves Analysis and Valuation Study and Report" update dated December 31, 2019 with effective date of December 01, 2019 of the proven reserves of the oil and gas properties known as CO's Nettle Leases, the (property), located in Monroe' County, Alabama using information and data that has been supplied to Nova by CO, information that has recently become available, and information available from commercial and private data sources and analyses that have been reviewed and/or performed by Nova regarding the calculated economically recoverable oil and gas reserves of the property as of December 01, 2019. Those calculations are based upon and conform to the definitions and disclosure guidelines of the United States Securities and Exchange Commission (SEC) contained in Title 17, Code of Federal Regulations, Modernization of Oil and Gas Reporting, Final Rule released January 14, 2009 in the Federal Register (SEC regulations). Nova's Certified SEC Reserves and Valuation Report updated December 31, 2019, and presented here, are prepared for public disclosure by CO in filings made with the SEC in accordance with the disclosure requirements set forth in the SEC regulations. The estimated reserves shown herein represent Nova's estimated net reserves attributable to the leasehold and royalty interests owned or controlled by CO, the property, as represented on December 01, 2019._ The report generated by Nova Resource Incorporated is Nova's estimate of reserves of such properties located in Monroe County, Alabama and otherwise known as CO's Nettle Lease and Properties, aka the "Properties".
The report and properties referred to herein and estimated by Nova Resource, Inc., assume 95 % ownership of 100 % Working Interest of the Properties and 79 % Net Revenue Interests in the leases. Accordingly 100 % of CO's total net oil and/or natural gas hydrocarbons reserves (including 95% Working Interests in 100 % Mineral Interests and 79 % Net Revenue Interests plus CO's drilling and completion costs plus CO's Lease Operating Expenses (LOE) plus CO's Ad Valorem Taxes plus CO's Severance Taxes of the Properties as of December 01, 2019 are used to calculate CO's Net Recoverable oil and gas value as shown in this report..
Based upon Nova's study of the properties Nova hereby certifies that the representations herein are Nova's Certified SEC Reserves and Valuation Calculations as of December 01, 2019 and that these calculation conform to all present SEC requirements and regulations and definitions and may be used by CO in public disclosure.
Based upon Nova's review, including the data, technical processes and interpretations, it is Nova's opinion that the overall procedures and methodologies utilized by Nova's staff in preparing their estimates of the proved reserves, future production and discounted future net revenue as of December 01, 2019 comply with the current SEC regulations and that the overall proved reserves of future production and discounted future net value for the projected hydrocarbon reserves and properties as estimated by Nova are, in the aggregate, reasonable within SEC guidelines.
The estimated reserves and future net value amounts presented by Nova are related to hydrocarbon prices. The hydrocarbon prices used in the preparation of this report are based upon the average prices during the trailing 12-month period prior to December 2019 as determined as unweighted arithmetic averages of the prices in effect on the first-day-of-the-month for each month within such period, unless prices were defined by contractual arrangements, as required by SEC regulations. The actual future prices of oil and/or gas may vary significantly from these prices and therefore, volumes of reserves actually recovered and the amounts of income actually received may differ significantly from the estimated quantities presented in the report. The net reserves as estimated by Nova attributable to the Properties as shown in this report are summarized as follows:
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LW
2
SEC Reserves and Valuation Report December 31, 2019
Page 2 of 17
SEC PARAMETERS
Estimated Net Reserves
Certain Leasehold and Royalty Interests
CO's Nettle and Surrounding Leases
of Monroe County, Alabama
Effective as of December 01, 2019
Net Reserves of Properties | Proved Developed Proved | Proved Total | ||
8/8 Gross | Net 8/8 Non-Producing Un-developed | |||
|
|
| ||
Gas —MCF) | 0 | 0 | 0 | 0 |
OiVCondensate—Bbls | 127,520 | 0 | 2,978,136 | 3,105,656 |
Future PV-0 After Payout Revenue | 5,538,646 | $ 123,610,812 | 138,149,458 | |
Future Drilling Development |
|
|
| |
5 PUD Wells at 80 acre spacing | 0 | 0 | $9,000,000 | $ 9,000,000 |
SEC -10% ($) |
|
|
| |
PV-10% Value Oil |
|
|
| |
After drilling Capex pay out | 2,041,519 | 0 | $ 45,513,378 | $ 45,554,897 |
Liquid hydrocarbons are expressed in thousands of standard 42 gallon barrels (Barrels). All gas volumes are reported on as "as sold basis" expressed in thousands of cubic feet (MCF) at the official temperature and pressure bases of the areas in which the gas reserves are located. In the report all oil volumes are reported on an "as sold basis" expressed in Barrels at the official temperature and volume bases of the areas in which the oil reserves are located. Oil and Gas prices are held constant throughout the projected productive life of the reserves. All discounted future net income/present value data are expressed as U.S. dollars ($). All values are based upon PADD3 Gulf Coast pricing.
The estimates of reserves, future production and income attributable to properties in this report were prepared using economic software from the SPE ex-president's What-1F2 Petroleum Economics Evaluation Software. Nova has found this program to be generally acceptable by Industry and reserves analysis in the United States, but notes that certain summaries and calculations may vary due to rounding and may not exactly match the sum of the properties being summarized. Furthermore, one line economic summaries may vary from the more detailed cash flow projections of the same properties included with this report and also may vary due to rounding. The rounding differences are not considered material.
The future revenue/present value is after the deduction of production taxes. The deductions incorporate CO’s reported normal direct costs of operating the wells aka Lease Operating Expenses (LOE), Ad Valorem taxes, inn costs and development costs and include the Working Interest and NR-I of CO.. The future present value includes deduction of state and federal income taxes and is Ad Valorem and Severance taxes and has not been adjusted for outstanding loans that may or may not exist nor does it include any adjustment for cash on hand or undistributed income. Liquid hydrocarbon reserves account for approximately 100 % of the estimated revenue from proved
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
reserves and natural gas reserves account for approximately 0 % of the estimated revenue from
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
3
SEC Reserves and Valuation Report December 31, 2019
Page 3 of 17
proved reserves. Any natural gas produced may be used by CO in its operations and are therefore not included in the future valuation of the property.
The discounted present value shown above is calculated using a discount rate of 10 percent per annum compounded annually as per SEC requirements.
The results shown above are presented for information purposes only and should not be construed as the estimate of fair market value.
Reserves Included in the Report
In Nova's opinion, the procedures and methodologies used by Nova's staff to determine the proved undeveloped reserves conform to the definitions as set forth in the Securities and Exchange Commission's Regulations Part 210.4-10(a). An abridged version of the SEC reserves definitions from 210A-10(a) entitled "Petroleum Reserves Definitions" is included as an attachment to the report.
The various proved reserve status categories are defined under the attachment entitled "Petroleum Reserves Definitions" in the report. The Proved Un-Developed reserves are for five (5) wells remaining to be drilled with reasonable certainty to by likely to produce similar volumes of reserves as producing wells given the identical economic conditions that exist as of December 01, 2019.
No attempt was made to quantify or otherwise account for any accumulated imbalances that may exist. Any gas volumes that may be included herein do not attribute gas consumed in operations as reserves.
Reserves are those estimated remaining quantities of oil and gas and related substances that are anticipated to be economically producible, as of a given date, from known accumulations by application of defined conditions. All reserve estimates involve an assessment of the uncertainty relating to the likelihood that the actual remaining quantities recovered will be greater or less that the estimated quantities determined as of the date the estimate is made. The uncertainty depends chiefly on the amount of reliable geologic and engineering data available at the time of the estimate and the interpretation of the data. The relative degree of uncertainty may be conveyed by placing reserves into one of two principal classifications, either proved or unproved. Unproved reserves are less certain to be recovered than proved reserves and may be further sub-classified as probable and possible reserves to denote progressively increasing uncertainty in their recoverability. At CO's request, only proved reserves attributable to the properties were reviewed.
Proved oil and gas reserves are those quantities of oil and gas which, by analysis of geoscience and engineering data, can be estimated with reasonable certainty to be economically producible from a given date forward given economic conditions that are expected to exist on December 01, 2019. The proved reserves were estimated using deterministic methods. If deterministic methods are used, the SEC has defined reasonable certainty-for proved reserves as a "high degree of confidence that the quantities will be recovered."
Proved reserve estimates will generally be revised only as additional geologic or engineering data become available, or as economic conditions change. For proved reserves, the SEC states that "as changes due to increased availability of geoscience (geological, geophysical, and geochemical), engineering, and economic data are made to the estimated ultimate recovery (EUR) with time. Reasonably certain EUR is much more likely to increase or remain constant than to decrease." Moreover, estimates of proved reserves may be revised as a result of future
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
4
SEC Reserves and Valuation Report December 31, 2019
Page 4 of 17
operations, effects of regulation by governmental agencies or geopolitical or economic risks. Therefore, the proved reserves are estimates only and should not be construed as being exact quantities, and if recovered, the revenues there from, and the actual costs related thereto, could be more or less than the estimated amounts.
Audit Data, Methodology, Procedure and Assumptions
The estimation of reserves involves two distinct determinations. The first determination results in the estimation of the quantities of recoverable oil and gas and the second determination results in the estimation of the uncertainty associated with those estimated quantities in accordance with definitions set forth by the Securities and Exchange Commission Regulations Part 210.4-10(a). The process of estimating the quantities of recoverable oil and gas reserves relies on the use of certain generally accepted analytical procedures. These analytical procedures fall into three broad categories or methods: (1) performance-based methods; (2) volumetric-based methods; and (3) analogy. These methods may be used singularly or in combination by the reserve evaluator in the process of estimating the quantities of reserves.
Reserve evaluators must select the method or combination of methods which in their professional judgment is most appropriate given the nature and amount or reliable geoscience and engineering data available at the time of the estimate, the established or anticipated performance characteristics of the reservoir being evaluated and the stage of development or producing maturity of the property.
In many cases, the analysis of the available geoscience and engineering data and the subsequent interpretation of this data may indicate a range of possible outcomes in an estimate, irrespective of the method selected by the evaluator (see attached sensitivity analysis).. When a range in the quantity of reserves is identified, the evaluator must determine the uncertainty associated with the incremental quantities of the reserves. If the reserve quantities are estimated using the deterministic incremental method, the uncertainty for each discrete incremental quantity of the reserves is addressed by the reserve category assigned by the evaluator and the sensitivity analysis. Therefore, the categorization of reserve quantities as proved, probable and/or possible, is one but not all of the issues, that addresses the inherent uncertainty in the estimated quantities reported. For proved reserves, uncertainty is defined by the SEC as reasonable certainty wherein the "quantities actually recovered are much more likely than not to be achieved." This report referred only to proved net reserve estimates made by Nova Resource, Inc. The SEC states that "probable reserves are those additional reserves that are less certain to be recovered than proved reserves but which, together with proved reserves, are likely as not to be recovered." The SEC states that "possible reserves are those additional reserves that are less certain to be recovered than probable reserves and the total quantities ultimately recovered from a project have a low probability of exceeding proved plus probable plus possible reserves." All quantities of reserves within the same reserve category must meet the SEC definitions as noted above.
Estimates of reserves quantities and their associated reserve categories may be revised in the future as additional geoscience or engineering data become available. Furthermore, estimates of reserves quantities and their associated reserve categories may also be revised due to factors such as changes in economic conditions, results on future operations, effects of regulation by governmental agencies or geopolitical or economic risks as previously noted.
Operations may be subject to various levels of governmental controls and regulations. These controls and regulations may include, but may not be limited to, matters relating to land tenure and leasing, the legal rights to produce hydrocarbons including the granting, extension or termination of production sharing contracts, the fiscal terms of various production sharing contracts, drilling and production practices, environmental protection, marketing and
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
pricing policies, royalties, various taxes and levies including income tax and are subject to change from time to
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
5
SEC Reserves and Valuation Report December 31, 2019
Page 5 of 17
time. Such changes in governmental regulations and policies may cause volumes of proved reserves actually recovered and amounts of proved income actually received to differ significantly from the estimated quantities.
The proved reserves for the properties as calculated and that were estimated by Nova were estimated by the deterministic method, the performance methods, the volumetric method, analogy, or a combination of methods
Utilizing the present economic conditions and limited to those proved reserves economically recoverable. The performance methods include, but may not be limited to, decline curve analysis that utilized extrapolations of historical production and pressure data available through April 30, 2014 or as stated elsewhere in this report, in those cases where such data were considered to be definitive. The data utilized in the analysis were furnished to Nova's staff from CO and from using commercial and private sources and were considered sufficient for the purpose.
The proved un-developed reserves were estimated primarily by the performance of existing wells and historical extrapolation methods. The data utilized were considered sufficient for the purpose.
As stated previously, proved reserves must be anticipated to be producible from a given date forward based upon existing economic conditions including prices and costs at which producibility from a reservoir is to be determined. Nova has reviewed certain primary economic data utilized in the area from identical reservoirs relating to hydrocarbon prices and costs and CO's supplied information and data and used CO's supplied information as accurate without audit.
The hydrocarbon prices and costs determined for the properties are based upon SEC required trailing twelve month averages of prices for the first of each month, unless prices were defined by contractual arrangements and cost based upon existing costs. For hydrocarbon products sold under contract, the contract prices, including fixed and determinable escalations exclusive of inflation adjustments, were used by Nova until expiration of the contract.
The product prices which were actually used by Nova to determine the future gross revenue for each property reflect any known adjustments to the prices for gravity, quality, local conditions, gathering and transportation fees, and/or distance from market, referred to as the "differentials." and discounted by approximately 15 % to account for pricing variations regionally from similar reservoir wells.
In addition, the table below summarizes the volume weighted benchmark TTM prices adjusted for differentials and referred to herein as the "TTM prices." The data shown is presented in accordance with SEC disclosure requirements.
Geographic Area Product TTM Average
PADD3 (GulfOil$ 62.63/ Bbl
Coast)
PADD3(GulfGas$ 2.785 MCF
Coast)
The effect of derivative instruments designated as price hedges of oil and gas quantities are not reflected in Nova's individual property evaluations.
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
6
SEC Reserves and Valuation Report December 31, 2019
Page 6 of 17
Operating costs are based on the operating expense reports supplied by the operator and include only costs directly applicable to the leases or wells or operations thereof. The operating costs include a portion of general and administrative costs allocated directly to the lease and wells. The operating costs furnished were accepted as factual data and assumed to be reasonable; however, Nova has not conducted an independent verification or audit of the accuracy of the data as supplied by the CO . No deductions were made for loan repayments, interests expenses, or exploration and development prepayments that were not charged directly to the leases or wells.
Development costs furnished by the operator are based upon CO's authorizations for expenditures for the proposed work or actual costs for similar projects. The development costs were accepted as factual and reasonable; however, we have not conducted an independent verification of the data supplied by the operator. Nova's estimate of zero abandonment costs after salvage value for the onshore properties were accepted without independent verification. Nova has estimated that abandonment costs should match the salvage value and therefore should equal zero after salvage; however, Nova does not guarantee nor makes any warranty for this or for its estimation of abandonment estimates.
No consideration was given in this report to potential environmental liabilities that may exist nor were costs included for potential liabilities to restore and clean up damages, if any, caused by past or present or future operating practices.
The proved undeveloped reserves for the properties estimated by Nova have been incorporated herein in accordance with CO's plans to develop these reserves as of December 01, 2019. The implementation of CO's development plans as presented to Nova is subject to the approval process adopted by CO's management and funding sources. As a result of Nova's inquires during the course of our review of CO's plans, CO has informed Nova that the development activities for the properties reviewed have been subjected to and received the internal approvals required by CO's management at the appropriate local, regional and/or corporate level. In addition to the internal approvals as noted, certain development activities may still be subject to specific partner AFE processes, Joint Operating Agreements (JOA) requirements or other administrative approvals external to CO. Additionally, CO has informed Nova that they are not aware of any legal, regulatory, political or economic obstacles that would significantly alter their plans to develop the properties.
The costs and parameters used were held constant throughout the life of the property as per SEC requirements.
To estimate economically recoverable proved oil and gas reserves and related future net cash flow and present values, Nova considers many factors and assumptions including, but not limited to, the use of reservoir and reserve and production parameters derived from geological, geophysical and engineering data that cannot be measured directly, economic criteria based on current costs and SEC pricing requirements, and forecast of future production rates. Under the SEC regulations 210.4-10(a)(22)(v) and (26), proved reserves must be anticipated to be economically producible from a given date forward based on existing economic conditions including prices and costs at which economic producibility from a reservoir is to be determined. While it may reasonably be anticipated that the future prices received for the sale of production and the operating costs and other costs relating to such production may increase or decrease from those under existing economic conditions, such changes were, in accordance with rules adopted by the SEC, omitted from consideration in making this evaluation.
Nova's forecasts for future production rates are based on historical performance from wells currently on production in the region with an economic cut-off for production being based upon the projected net revenue being equal to the projected operating expenses. No further reserves or valuation were given to any wells beyond their economic cut-off. Where no production decline trends have been established by Nova due to the limited historical
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
7
SEC Reserves and Valuation Report December 31, 2019
Page 7 of 17
production records from wells on the properties, surrounding well's historical production records have been used and extrapolated to wells of the property. Where applicable the decline rate of any well is used to determine future production volumes to be economically recovered. The present rate of decline was then applied by Nova to determine the present economic life of the production from the reservoir.
Test data and other related information were used by Nova to estimate the anticipated initial production rates from those wells or locations that are not currently producing (PUDs). For reserves not yet on production, sales were estimated to commence at an anticipated date. Wells or locations that are not currently producing may or may not start producing earlier or later than anticipated by CO and thus estimates due to unforeseen factors causing such changes may occur. Such factors may include further interpretation, delays due to weather, the availability of rigs, the sequence of drilling, completing and/or recompleting wells and/or constraints set by regulatory bodies.
Estimated production rates from wells from locations that are not currently producing may change due to, but not limited to, reservoir performance, operating conditions, compression and artificial lift, pipeline capacity and/or operating conditions, producing market demand and/or allowables, prices, or other constraints which may be set by regulatory bodies and thus out of Cos control.
Operations may be subject to various levels of governmental oil and gas price controls and regulations. These controls and regulations may include, but not be limited to, matters relating to land tenure and leasing, the legal rights to produce hydrocarbons, drilling and production practices, environmental protection, marketing and pricing policies, royalties, various taxes and levies including income tax which may be subject to change from time to time. Such changes in governmental regulations and policies may cause volumes of proved reserves and amounts of income to differ significantly from the estimated quantities.
The estimates of proved reserves were based upon Nova's study of the properties and data supplied by commercial sources and CO and operators in the area; however, Nova has not made any detailed field examination of the properties. No consideration was given to potential environmental liabilities that may exist nor were any costs included for potential liabilities to restore and clean up damages, if any, caused by past or projected operating practices.
Certain technical personnel of Nova are responsible for the preparation of reserve estimates on properties and for the preparation of revised estimates, when necessary, on old properties. These personnel assembled the necessary data and maintained the data and work papers in an orderly manner. We consulted with Nova's technical personnel and had access to their work papers and supporting data.
CO has informed Nova that they have furnished Nova all of the material accounts, records, geological and engineering data, reports and other data in their possession. In performing our forecast of the estimated future proved reserves, production and income, Nova has relied upon CO's data furnished, its own in-house staff and other sources, commercially available sources of data and information, and by CO with respect to property development plans, and or commercial production and well tests from examined wells, other direct costs of operating the wells or leases, other costs including ad valorem and production taxes, recompletion and development costs, abandonment costs after salvage, product prices based upon SEC requirements, geological and engineering data, etc. Nova reviewed such data for its reasonableness; however, Nova has not conducted an independent verification of CO's or the operator's supplied data. In summary, Nova considers the assumptions, data, methods and analytical procedures used by Nova and reviewed by Nova as appropriate for the purpose hereof, and Nova has used all such methods and procedures that Nova considers necessary and appropriate under the circumstances to render the conclusions as
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
8
SEC Reserves and Valuation Report December 31, 2019
Page 8 of 17
stated. Nova considers the data used in this report as appropriate and sufficient for the purpose of preparing the estimation of reserves and future net revenue herein.
Future Production Rates
For wells currently on production, Nova's forecasts of future production rates are based on historical performance data. Adjustments for the effects of curtailment where appropriate, were used until a decline in ability to produce was estimated and CO's supplied data without audit. An estimated rate of decline was then applied to economic depletion of the reserves. If a decline trend has been established, this trend was used as the basis for estimating future production rates from proven un-developed wells.
Offset analogies and other related CO's information were used to estimate the anticipated initial production rates for those wells or locations that are not currently producing. For reserves not yet on production, sales were estimated to commence on an anticipated date furnished by the operator. Wells or locations that are not currently producing may start producing earlier or later than anticipated in Nova's estimates due to unforeseen factors causing a change in the timing of initial production. Such factors may include delays due to weather, the availability of rigs, the sequence of drilling, completions and/or recompletion of wells and/or constraints set by regulatory bodies and/or financial entities.
The future production rates from wells currently in production or wells or locations that are not currently producing may be more or less than estimated because of changes including, but not limited to, reservoir performance, operating conditions related to surface facilities or subsurface conditions, compression and artificial lift, pipeline capacity and/or transportation capacity and/or operating conditions, producing market demand and/or allowables or other constraints set by regulatory bodies and availability of financing.
Audit Opinion
Based on Nova's study, including data, technical processes and methodologies presented by CO and the operator, it is Nova's opinion that the overall procedures and mythologies utilized by Nova in preparing this estimate of the proved reserves, future production and discounted fixture net income as of December 01, 2019 comply with current SEC regulations and that the overall proved reserves, fixture production and discounted future net income for the reviewed properties as estimated are, in the aggregate, reasonable within established SEC guidelines.
Independent and Professional Qualifications
Neither Nova nor its employees presently own any interest in the leases.
Nova is a certified petroleum geological, geophysical and professional petroleum engineering consulting firm that has been providing petroleum-consulting services throughout the world for over thirty years. Nova is an employee-owned incorporated firm and maintains offices in Dallas, Texas U.S.A. We have numerous petroleum engineers and certified petroleum geologists and geophysicists and certified licenses operator personnel as members of our staff as well as many outside associated operators. By virtue of our size and scope of worldwide activity and services and the large number of clients for which we provide services, no single client or job represents a material portion of Nova's annual revenue. Neither Nova nor its employees nor staff serve as officers or directors of any
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
9
SEC Reserves and Valuation Report December 31, 2019
Page 9 of 17
client's privately or publicly traded oil and gas company and are separate and independent from the operating and investment decision-making process of our clients.
Nova actively participates in industry-related professional societies and organizations and has been performing reserves evaluations according to SEC regulation for over twenty-five years for both major oil and gas corporations as well as mid-size and small independent oil and gas companies worldwide. Many of our staff have authored or co-authored technical papers and reports on the subject of reserves related topics.
Nova staff engineers, geologists, geophysicists and operating personnel are required to receive the appropriate professional accreditation in the form of registered or certified professional engineer's license or a registered or certified professional geoscientist's credentials from an appropriate governmental authority or from the recognized self-regulating professional organization or regulatory operating body.
Nova is independent with respect to CO.
The results of our evaluation and valuation, presented herein, are based on technical reviews and analysis by teams of geoscientists and engineers from Nova. The professional qualifications of the undersigned, the technical person primarily responsible for overseeing, reviewing and approving the review of the reserves information discussed in this report, are included as an attachment to this letter.
Terms of Usage
The results of our reserves analysis and valuation study, the report, presented in report summary form herein, were prepared in accordance with the disclosure requirements set forth in the SEC regulations and intended to allow CO to post a public disclosure as an exhibit in filings made with the SEC by CO.
We have provided CO with a digital version of the original signed copy of this certified SEC reserves analysis and valuation report summary letter. In the event there are any differences between the digital version included in filings made by CO and the original signed letter, the original signed letter shall control and supercede the digital version.
The data and work papers used in the preparation, study, analysis and valuation report are available for examination by authorized parties in Nova's offices. Please contact Nova if we can be of further service.
Respectfully, Nova Resource, Inc. \s\ Joseph V. Rochefort—President CPG # 3358, CGP, # 90, QRE CT5I-101; SIPES # 1901 |
| |
|
| |
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
SEC Reserves and Valuation Report December 31, 2019
Page 10 of 17
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Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
11
SEC Reserves and Valuation Report December 31, 2019
Page 11 of 17
Professional Qualifications of Primary Technical Person
The conclusions presented in this report are the result of technical analysis conducted by a team of geoscientists and engineers from Nova Resource, Inc. Joseph V. Rochefort was the primary technical person responsible for overseeing the review of the estimate of reserves, future production and income.
Mr. Rochefort, the president of Nova Resource, Inc. (Nova) is responsible for coordinating and supervising staff and consultants of the company in ongoing reservoir evaluation studies worldwide. Before forming Nova, Mr. Rochefort served in a number of technical and managerial positions with Exxon, Sun, Arco, and Mobil, now ExxonMobil. Mr. Rochefort's resume is available for review.
Mr. Rochefort graduated from both Texas Christian University and from Texas Tech University with BS degrees in geology and physics and Master's degrees in international relations. Mr. Rochefort achieved his over thirty years of expertise in technical and managerial responsibilities in oil and gas reserves and reservoirs evaluation and has attained Certification as a Professional Petroleum Geologist # 3358, a Professional Petroleum Geophysicist # 90, and as a Qualified Reserves Evaluator under authority of CT51-101 and is Independent as shown by membership in SIPES with registration number # 1901. Mr. Rochefort has been designated an expert witness regarding oil and gas reserves evaluation in several judicial cases. Mr. Rochefort has written several internal guidelines regarding oil and gas reserves evaluations and has co-authored several technical articles and one book regarding hydrocarbon accumulations. Mr. Rochefort maintains his expertise in oiI and gas reserves analysis by attending continuing education courses of at least 16 hours per year. Mr. Rochefort has created an internally generated course for staff pertaining to the formalized training related to the definitions and disclosure guidelines contained in the United States Securities and Exchange Commission Title 17, Code of Federal Regulations, Modernization of Oil and Gas Reporting, Final Rule released January 14, 2009 in the Federal Register. Mr. Rochefort has attended several training classes covering such topics as reservoir engineering, geoscience and petroleum economics evaluation methods, procedures, software and ethics to maintain his expertise as a Qualified Reserves Evaluator. Mr. Rochefort has been recognized by the SEC as a Qualified Reserves Evaluator for over 17 years.
Based upon his educational background, professional training and more than 30 years of experience in the estimation and evaluation and generation of reserves evaluation analyses of petroleum reserves, Mr. Rochefort has attained the professional qualifications and expertise as a Reserves Estimator and Reserves Auditor as set forth in Article III of the "Standards Pertaining to the Estimating and Auditing of Oil and Gas Reserves Information" promulgated by the Society of Petroleum Engineers and as a Qualified Reserves Evaluator under authority of CT51- 101.
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
12
SEC Reserves and Valuation Report December 31, 2019
Page 12 of 17
PETROLEUM RESERVES DEFINITIONS
As Adapted From:
RULE 4-10(a) of REGULATION S-X PART 210
UNITED STATES SECURITIES AND EXCHANGE COMMISSION (SEC)
PREAMBLE
On January 14, 2009, the United States Securities and Exchange Commission (SEC) published the "Modernization of Oil and Gas Reporting: Final Rule" in the Federal Register of National Archives and Records Administration (NARA). The "Modernization of Oil and Gas Reporting: Final Rule" includes revisions and additions to the definition section of Rule 4-10 of Regulation S-X, revisions and additions to the oil and gas reporting requirements in Regulation S-K, and amends and codifies Industry Guide 2 in Regulation S-K. The Modernization of Oil and Gas Reporting; Final Rule", including all references to Regulation S-X and Regulation SK, shall be referred to herein collectively as the "SEC regulations". The SEC regulations take effect for all filings made with the United States Securities and Exchange Commission as of December 31, 2009, or after January 1, 2010. Reference should be made to the full text under Title 17, Code of Federal Regulations, Regulation S-X Part 210, Rule 4-10(a) for complete definitions (direct passages excerpts in part or wholly from the aforementioned SEC document are incorporated herein in italics).
Reserves are estimated remaining quantities of oil and gas and related substances anticipated to be economically producible, as of a given date, by application of development projects to known accumulations. All reserves estimates involve an assessment of the uncertainty relating the likelihood that the actual remaining quantities recovered will be greater or less than the estimated quantities determined as of the date the estimate is made. The uncertainty depends chiefly on the amount of reliable geologic and engineering data available at the time of the estimate and the interpretation of these data. The relative degree of uncertainty may be conveyed by placing reserves into one of two principal classifications, either proved or unproved. Unproved reserves are less certain to be recovered than proved reserves and may be further sub-classified as probable and possible reserves to denote progressively increasing uncertainty in their recoverability. Under SEC regulations as of December 31, 2009, or after January 1, 2010, a company may optionally disclose estimated quantities of probable or possible oil and gas reserves in documents publicly filed with the SEC. The SEC regulations continue to prohibit disclosure of estimates of oil and gas resources other than reserves and any estimated values of such resources in any document publicly filed with the SEC unless such information is required to be disclosed in the document by foreign or state law as noted in 229.1202 Instruction to item 1202.
Reserves estimates will generally he revised only as additional geologic or engineering data become available or as economic conditions change.
Reserves may be attributed to either natural energy or improved recovery methods. Improved recovery methods include all methods for supplementing natural energy or altering natural forces in the reservoir to increase ultimate recovery. Examples of such methods are pressure maintenance, natural gas cycling, waterflooding, thermal methods, chemical and/or biological methods, and the use of miscible and immiscible displacement fluids as well as other methods.
Reserves may be attributed to either conventional or unconventional petroleum accumulations. Petroleum accumulations are considered as to be either conventional or unconventional based on the nature of their in-place characteristics, extraction method applied, or degree of processing prior to sale. Examples of unconventional
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
13
SEC Reserves and Valuation Report December 31, 2019
Page 13 of 17
petroleum accumulations include coalbed or coal seam methane (CBM/CSM), basin-centered gas, shale gas, gas hydrates, natural bitumen and oil shale deposits. These unconventional accumulations may require specialized extraction technology and/or significant processing prior to sale.
Reserves do not include quantities of petroleum being held in inventory.
Because of the differences in uncertainty, caution should be exercised when aggregating quantities of petroleum from different reserves categories.
RESERVES (SEC DEFINITIONS)
The Securities and Exchange Commission Regulation S-X 210.4-10(a)(26) defines reserves as follows:
Reserves. Reserves are estimated remaining quantities of oil and gas and related substances anticipated to be economically producible, as of a given date, by application of development projects to known accumulations. IN addition, there must exist, or there must be a reasonable expectation that there will exist, the legal right to produce or a revenue interest in the production, installed means of delivering oil and gas or related substances to market, and all permits and financing required to implement the project.
Note to paragraph (a)(26): Reserves should not be assigned to adjacent reservoirs Isolated by major, potentially sealing, faults until those reservoirs are penetrated and evaluated as economically producible. Reserves should not be assigned to areas that are clearly separated from known accumulation by a non-productive reservoir (ie. absence of reservoir, structurally low reservoir, or negative test results). Such areas may contain prospective resources (ie. potentially recoverable resources from undiscovered accumulations).
PROVED RESERVES (SEC DEFINITIONS)
Securities and Exchange Commission Regulation S-X 210.4-10(aX22) defines proved oil and gas reserves as follows:
Proved oil and gas reserves. Proved oil and gas reserves are those quantities of oil and gas, which, by analysis of geoscience and engineering data, can be estimated with reasonable certainty to be economicalb., producible - from a given date forward, from known reservoirs, and under existing economic conditions, operating methods, and government regulations prior to the time at which contracts providing the right to operate expire, unless evidence indicates that renewal is reasonably certain, regardless of whether deterministic or probabilistic methods are used for the estimation. The project to extract the hydrocarbons must have commenced or the operator must be reasonably certain that it will commence the project within a reasonable time.
(0 The area of the reservoir considered as proved includes:
(A)The area identified by drilling and limited by fluid contacts, if any, and
(B)Adjacent undrilled portions of the reservoir that can, with reasonable certainty, be judged to be continuous with it and to contain economically producible oil and gas on the basis of available geoscience and engineering data
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
SEC Reserves and Valuation Report December 31, 2019
Page 14 of 17
0i) In the absence of data on fluid contacts, proved quantities in a reservoir are limited by the lowest known hydrocarbons (LKH) as seen in a well penetration unless geoscience, engineering, or performance data and reliable technology establishes a lower contact with reasonable certainty.
(iii)Where direct observation from well penetrations has defined a highest known oil (HKO) elevation and the potential exists for an associated gas cap, proved oil reserves may be assigned in the structurally higher portions of the reservoir only if geoscience, engineering or performance data and reliable technology establish the higher contact with reasonable certainty.
(iv)Reserves which can be produced economically through application of improved recovery techniques (including but not limited to, fluid injection) are included in the proved classification when:
(A)Successful testing by a pilot project in an area of the reservoir with properties no more favorable than in the reservoir as a whole, the operation of an installed program in the reservoir or an analogous reservoir, or other evidence using reliable technology establishes the reasonable certainty of the engineering analysis on which the project or program was based; and
(B)The project has been approved for development by all necessary parties and entities, including governmental entities.
(iv)Existing economic conditions include prices and costs at which economic producibility from a
reservoir is to be determined The price shall be the average price during the 12-month period prior to the ending date of the period covered by the report, determined as an =weighted arithmetic average of the first-of-the-month price for each month within such period, unless prices are defined by contractual arrangements, excluding escalations based upon future conditions.
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
15
SEC Reserves and Valuation Report December 31, 2019
Page 15 of 17
RESERVES STATUS DEFINITIONS AND GUIDELINES
As Adapted From:
RULE 4-10(a) of REGULATION S-X PART 210
UNITED STATES SECURITIES AND EXCHANGE COMMISSION (sec)
And
PETROLEUM RESOURCES MANAGEMENT SYSTEM (SPE-PRMS)
Sponsored and Approved by:
SOCIETY OF PETROLEUM ENGINEERS (SPE)
WORLD PETROLEUM COUNCIL (WPC)
AMERICAN ASSOCIATION OF PETROLEUM GEOLOGISTS (AAPG)
SOCIETY OF PETROLEUM EVALUATION ENGINEERS (SPEE)
Reserves status categories define the development and producing status of wells and reservoirs. Reference should be made to Title 17, Code of Federal Regulations, Regulation S-X Part 210, Rule 4-10(a) and SPE PRMS as the following reserves status definitions are based on excerpts from the original documents (direct passages excerpted from the aforementioned SEC and SPE-PRMS documents are denoted in italics herein).
DEVELOPED RESERVES (SEC DEFINITIONS)
Securities and Exchange Commission Regulations S-X 210.4-10(a)(6) defines developed oil and gas reserves as follows:
Developed oil and gas reserves are reserves of any category that can be expected to be recovered:
(i)Through existing wells with existing equipment and operating methods or in which the cost
of the required equipment is relatively minor compared to the cost of a new well; and
(ii)Through installed extraction equipment and infrastructure operational at the time or the reserves estimate if the extraction is by means not involving a well
Developed Producing (SPE-PRMS Definitions)
While not a requirement for disclosure under the SEC regulations, developed oil and gas reserves may be further sub-classified according to the guidance contained in the SPE-PRMS as Producing or Non-Producing.
Developed Producing Reserves
Developed Producing Reserves are expected to be recovered from completion intervals that are open and producing at the time of the estimate.
Improved recovery reserves are considered producing only after the improved recovery project is in operations.
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Developed Non-Producing (PDNP)
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
16
SEC Reserves and Valuation Report December 31, 2019
Page 16 of 17
Developed Non-Producing reserves include shut-in and behind-pipe reserves.
Shut-ln
Shut-in Reserves are expected to be recovered from:
(I)completion intervals which are open at the time of the estimate, but which have not started
producing;
(2)wells which were shut-in for market conditions or pipeline connections; or
(3)wells not capable of production for mechanical reasons. Behind-Pine
Behind-pipe Reserves are expected to be recovered from zones in existing wells, which will require additional completion work or future re-completion prior to start of production.
In all cases, production can be initiated or restored with relatively low expenditure compared to the cost of drilling a new well.
UNDEVELOPED RESERVES (SEC DEFINITIONS)
Securities and Exchange Commission Regulation S-X 210A-10(a)(31) defines undeveloped oil and gas reserves as follows:
Undeveloped oil and gas reserves are reserves of any category that are expected to be recovered from new wells on undrilled acreage, or from existing wells where a relatively major expenditure is required for recompletion.
reserves on undrilled acreage shall be limited to those directly offsetting development spacing areas that are reasonably certain of production when drilled, unless evidence using reliable technology exists that establishes reasonable certainty of economic producibility at greater distances.
(ii)Undrilled locations can be classified as having undeveloped reserves only if a development plan has been adopted indicating that they are scheduled to be drilled within five years, unless the specific circumstances, justify a longer time.
(iii)Under no circumstances shall estimates for undeveloped reserves be attributable to any acreage for which an application of fluid injection or other improved recovery techniques is contemplated, unless such techniques have been proved effective by actual projects in the same reservoir or an analogous reservoir, as defined in paragraph (a)(2) of this section, or by other evidence using reliable technology establishing reasonable certainty.
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
Central Operating, LLC
17
SEC Reserves and Valuation Report December 31, 2019
Page 17 of 17
See attached effective date 12-01-2019 PDP Tables ((4 pages)
See attached effective date 12-01-2019 1 PUD Tables w cost for five (5) PUD used in calculations (4 pages)
THIS
SPACE
LEFT
BLANK
INTENTIONALLY
Central Operating, LLC Monroe AL Smackover Nettie Leases Cert Sec RPT 12-31-2019
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
PROJECT INFORMATION
WELL PERFORMANCE DATA
BASIC DATA EVALUATION DATE
PREPARED BY
INTEREST OWNER
WELL &/OR LEASE NAME FIELD &/OR RESERVOIR COUNTY OR PARISH
(2 CAP LETTERS) STATE OPERATOR' NAME
PROJ COMB NAME -(COMB#) PROJ FILE NAME
RESERVE CATEGORY: *EFF MONTH
*EFF YR
SELECT DISCOUNT RATE -% MID-YEAR=1 YEAR-ENDS
LSEHOLD COST - $
IDC & OTHER EXP - $
TANG & LSE EQUIP - $ DIR OPR EXP/WELL - $/YR
DIR OPR EXP ESC — %
YEAR NO. TO START ESC INDIR OPR EXP- % NET REV SEV TAX - % NET OIL REV SEV TAX - % NET GAS REV SEV TAX GAS - $/Mcf
ADV TAX - % OF NET REV NET PROFIT INTEREST -
OIL PRICE - 5/BBL
OIL PRICE ESC -
OIL ESC START YEAR NO.
MAX OIL PRICE - $IBBL TRANSPORTATION • $/bbl TRANSPORTATION - $/Mcf
LOAN PRINCIPAL - $
ANNUAL INTEREST RATE % TERM 0=FIX 1=DEDICATED
TOTAL NO. MONTHS (FIX)
DEDICATION OF TOT REV % SEC 29 TAX CREDIT- $/Mcf SALVAGE - %
LOSS CARRY FIND (1,0N 2,OFF)
Dec-2019EXPONENTIAL DECLINE
Nova Resourc NO OF WELLS (1 or more)**1
Central Opera OIL WELL PROD - bbl/DAY19.628
Nettles 9-12 reGO R Mcf/bbl0.5
Smackover GAS WELL PROD - Mcf/DAY0
MonroeCONDENSATE - bbIIMMcf0
ALEXPONENT -N- DECIMAL0.99999
Central Opera Eff. DECLINE RATE - - %5
12-31-2019 PI YEARS OF CONSTANT PROD0
12-31-2019 PI MAX YEARS TO CALC (4-30)30
PDPSET ECO LIMIT 1=YES O=NO1
DecECO RATE bbl OR Mcf/DAY1.88
2019 CUMULATIVE PROD - bbl0
10 CUMULATIVE PROD - Mcf0
1 ASSIGNED ACRES / WELL80
AVERAGE THICKNESS - FT.62
ECONOMIC and INVESTMENT DATA
0 2nd YR 3rd YR 4th YR5th YR
25,0000000
15,0000000
12,000 INITAL W.I. OWNED - %95.0000
0.00 INITAL REVENUE INTEREST-%79.0000
0 FINAL W.I. OWNED - %95.0000
0.00 FINAL REVENUE INTEREST-%79.0000
7.10 REVERSION ACTIVATOR0
4.80 0 FOR NO REVERSION *******************
0 1 FOR GROSS INCOME $0
2.00 2 FOR NET INCOME *******************
0.00
PRICE DATA
62.63 GAS PRICE - $IMCF2.88
0.00 GAS PRICE ESC - %0.00
mGAS ESC START YEAR NO.0
62.63 MAX GAS PRICE - $/MCF2.88
0.00
0.00 BOE FACTOR21.7843
INCOME TAX DATA
mFED INCOME TAX RATE - %0
0.00 STATE INCOME TAX RATE -0
mRECOVERY PERIOD (5, 7, 10)5
mDEPR METHOD (1.0, 1.5, 2.0)200%
0.00 MID-PERIOD CONVENT. CODE5
2.875 PCT DEPLETION RATE - %15
2.00 DEPL LIMITATION OF NET-%100.00
1
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
FILE NAME: 12-31-2019 PDI COMB NAME: 12-31-2019 PDP SUMMARY OF EXPONENTIAL DECLINE
EVALUATION DATE31-Dec-2019
INVESTMENT$40,000
NO. MONTHS PROD IN 1st YEAR1
ECO LIFE - YEARSGREATER 30
PAYOUT YRS0.13
NET INCOME/INVEST138.47
INTERNAL RATE RETURN —Mid-Year9999.9%
NPV @ SELECT RATE-$10.00%$2,041,519
8/8 OIL RES - bbl127,520
8/8 GAS RES - Mcf63,760
NET OIL RES - bbl100,741
NET GAS RES - Mcf50,370
NET COST/BOE - $/BOE0.39
NET RETURN/BOE - $/BOE53.36
NET INCOME/BOE - $/BOE53.75
WT. AVG PRICE OIL - $/bbl62.63
WT. AVG PRICE GAS - $/Mcf2.88
OIL ECO RATE - bbl/DAY8.0
GAS ECO RATE - Mcf/DAY4.0
ULT OIL RECOV/ACRE - bbl1,594
ULT GAS RECOV/ACRE - Mcf797
ULT OIL RECOV/ACRE-FT -bbl26
ULT GAS RECOV/ACRE-FT -Mcf13
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
RESERVE and ECONOMIC REPORT
PREPARED BY: INTEREST OWNER: SELL &NOR LEASE FIELD OR RESERVOIR:
GROSS PRODUCTIONNET PRODUCTION PRICE PRICE
YEAR OIL-BBLS GAS-MCF OIL-BBLS GAS-MCF OIL-S GAS-5
Nova Resource, Inc. Central Operating, LLC Nettles 9-12 re-worked Smackover
COMB NAME: FIE NAME: EVAL. DATE: EFFECTIVE DATE:
12-31-2019 POP 12-31-2019 PDP 31-Dec-2019 01-Dec-2019
NET OPERATING REVENUE
OIL-5GAS-STOTAL-S
CATEGORY: PDP COUNTY: Monroe STATE: AL OPERATOR: Central Operat
NET OPERATING EXPENSES
DIR INDiR"'RPM
| HARMONIC DECLINE |
|
|
|
|
|
|
|
|
|
| |||||
2019 | 596 | 298 | 471 | 235 | 562.63 | $2.88 | $29,476 | $677 | $30,153 | $950 | $2,728 | |||||
2020 | 6,958 | 3,479 | 5,496 | 2,748 | 82.63 | 2.88 | 344,242 | 7,901 | 352,143 | 11,400 | 31,663 | |||||
2021 | 6,627 | 3,314 | 5,236 | 2,618 | 62.63 | 2.88 | 327,905 | 7,526 | 335,431 | 11,400 | 30,351 | |||||
2022 | 6,327 | 3,164 | 4,998 | 2,499 | 82.63 | 2.68 | 313,048 | 7,185 | 320,234 | 11,400 | 28,976 | |||||
2023 | 6,053 | 3,026 | 4,782 | 2,391 | 62.63 | 2.88 | 299,480 | 6,874 | 306,354 | 11,400 | 27,720 | |||||
2024 | 6,801 | 2,901 | 4,583 | 2,292 | 62.63 | 2.88 | 287,039 | 6,563 | 293,627 | 11,400 | 26,569 | |||||
2025 | 5,570 | 2,785 | 4,400 | 2,200 | 62.63 | 2.88 | 275,590 | 6,325 | 281,916 | 11,400 | 25,509 | |||||
2026 | 5,356 | 2,678 | 4,232 | 2,115 | 62.63 | 2.88 | 265,020 | 6,083 | 271,103 | 11,400 | 24,530 | |||||
2027 | 5,159 | 2,579 | 4,075 | 2,036 | 62.63 | 2.88 | 255,231 | 5,858 | 281,089 | 11,400 | 23,624 | |||||
2028 | 4,975 | 2,487 | 3,930 | 1,966 | 62.63 | 2.83 | 246,139 | 5,849 | 251,789 | 11,400 | 22,783 | |||||
2029 | 4,804 | 2,402 | 3,795 | 1,897 | 62.63 | 2.88 | 237,673 | 5,455 | 243,128 | 11,400 | 21,999 | |||||
2030 | 4,644 | 2,322 | 3,669 | 1,834 | 62.63 | 2.88 | 229,770 | 5,274 | 235,044 | 11,400 | 21,268 | |||||
S-TOT | 62,869 | 31,435 | 49,667 | 24,833 | WT. | WT. | 3,110,614 | 71,396 | 3,182,010 | 126,350 | 287,921 | |||||
REM. | 64,651 | 32,325 | 51,074 | 25,537 | AVG. | AVG. | 3,198,768 | 73,419 | 3,272,187 | 205,200 | 296,080 | |||||
TOTAL | 127,520 | 63,760 | 100,741 | 50,370 | 62.63 | 2.8B | 6,309,382 | 144,815 | 6,454,197 | 331,550 | 584,001 | |||||
OPERATING YEAR CASH ;LOW-3 | GUM. CASH FLOW CASH FLOW CAPITAL INT BTAX - $ BTAX - $ INVEST-S 1000-3 | PRINCIPAL CASH FLOWPRESENT WORTH PROFILE PAYMENT AFTER DEBTDISCNPVDISCNPV 1000-5 REDUCTION RATE - % BTAX - S RATE - % BIM - $ Based On Md-Year Discounting | ||||||||||||||
2019 526,474 | (513,526) | (513,526) $40,000 0,0 | 0,0 | 526,474254,285,259 | 40 $668,643 | |||||||||||
2020 306,880 | 308,880 | 295,354 0 0.0 | 0.0 | 308,88053,111,802 | 45 499,538 | |||||||||||
2021 293,680 | 293,680 | 5139,035 0 0.0 | 0.0 | 293,68082,382,032 | 50 443,591 | |||||||||||
2022 279,858 | 279,858 | 868,892 0 0.0 | 0.0 | 279 858102,041,519 | 55 397,422 | |||||||||||
2023 267,234 | 267,234 | 1,136,126 0 0.D | 0.0 | 267,234121,777,339 | 60 358,714 | |||||||||||
2024 265,658 | 255,658 | 1,381,784 0.0 | 0.0 | 255,658151,479,059 | 65 325,823 | |||||||||||
2026 245,007 | 245,007 | 1,636,791 0.0 | 0,0 | 245,307181,259,751 | 70 297,557 | |||||||||||
2026 235,173 | 235,173 | 1,871,964 0.0 | 0.0 | 235,173201,143,735 | 75 273,023 | |||||||||||
2027 226,065 | 226,065 | 2,098,028 0.0 | 0.0 | 226,06525924,081 | 80 251,547 | |||||||||||
2028 217,606 | 217,606 | 2,315,634 0.0 | 0.0 | 217,60630769,910 | 85 232,602 | |||||||||||
2029 209,729 | 208,729 | 2,525,363 0.0 | 0.0 | 209,72935656,041 | 90 215,779 | |||||||||||
2030 202,376 | 202,376 | 2,727,739 0.0 | 0.0 | 202,376 |
| |||||||||||
S-TOT 2,767,739 | 2,727,739 | 2,727,739 40,000 0 | 0 | 2,767,739 |
| |||||||||||
REM. 2,770.906 | 2,770,906 | 2,770,906 0 0 | 0 | 2,770,906 |
| |||||||||||
TOTAL 5,538,646 | 5,498,646 | 5,498,646 40,000 0 | 0 | 5,538,646 |
| |||||||||||
|
|
|
| BEFORE TAX SUMMARY | ||||||||||||
|
|
|
| MONTHS IN FIRST YEAR | 1 | |||||||||||
NET COST/BOE- $/BOE | $0.39 | OLT OIL RECOVERY- BBL | 127,520 | EGO LIFEYEARS | GREATER 30 | |||||||||||
NET RETURN/BOE- 3/BOE | $53.36 | ULT GAS RECOVERY- MCF | 63,760 | NPV @ SELECT RATE10.0%52,041,519 | ||||||||||||
NET INCOME1130E- 5/B0E | $53.75 | ULT OIL RECOV/ACRE- BBL | 1,594 | NET INCOME / INVEST | 138.47 | |||||||||||
OIL EGO RATE- BEL/DAY | 8.0 | ULT GAS RECOV/ACRE- MCF | 797 | INT RATE RETURNMid-Yr | 9999.90% | |||||||||||
GAS ECO RATE- MCF/DAY | 4.0 | ULT OIL RECOV/AGRE-FT- BBL | 26 | PAYOUTYEARS | 0,13 | |||||||||||
INIT PROD RATE- BBLJDAY | 19.6 | ULT GAS RECOV/ACRE-FT- MCF | 13 | $ 1 NET !NTT PROD RATE | $2,580 | |||||||||||
INIT PROD RATE- MCF/DA | 0.0 | INITIAL W.I.- % | 95.0000 | 8 / 8 OIL RESERVEISBL | 127,520 | |||||||||||
DECLINE RATE- % | 5,0 | FINAL W.I.- % | 95.0000 | 8 8 GAS RESERVEMCF | 63,760 | |||||||||||
EXPONENT -N- | 1.0 | INITIAL REVENUE INT.- V. | 79.0000 | NET OIL RESERVEBBL | 100,741 | |||||||||||
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
|
| FINAL REVENUE INT.- % | 79.0000 | NET GAS RESERVEMCF | 50,370 | |||||||||||
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
OIL PRODUCTION SENSITIVITY ANALYSIS OWNER ---- Central Operating, LLCFILE NAME LSE/WELL-- Nettles 9-12 re-workedEVAL. DATE FIELD ---SmackoverEFFECT DATE GAS PRICE | 12-31-2019 PDF 31-Deo-2019 01-Dec-2019 OIL PRICE | |||
FOR INVESTMENT OF$40,000 |
| $2.88 | $62.63 | |
Based On IVId-Year DiscountingNET PRESENT VALUE @ | 10.0% |
| ||
!NIT PROD RATE |
|
|
|
|
Bbf/Day -> | 0 | 20 | 25 | 30 |
EXPONENTIAL | 0.5 -40,000 | 2,710,651 | 3,491,600 | 4,218,470 |
DECLINE | 4.0 -40,000 | 2,151,254 | 2,779,100 | 3,363,470 |
RATE | 5.0 -40,000 | 2,041,519 | 2,639,332 | 3,195,748 |
| 15.0 -40,000 | 1,389,838 | 1,809,293 | 2,199,701 |
Based On Mid-Year DiscountingINTERNAL RATE OF RETURN - % |
|
| ||
Bbl/Day --> | 0 | 20 | 25 | 30 |
EXPONENTIAL | 0.5 0.0% | 9999.9% | 9999.9% | 9999.9% |
DECLINE | 4.0 0.0% | 9999.9% | 9999.9% | 9999.9% |
RATE | 5.0 0.0% | 9999.9% | 9999.9% | 9999.9% |
| 15.0 0.0% | 9999.9% | 9999.9% | 9999.9% |
--- 9999 gY.) MEANS INDETERMINATE RATE OF RETURN |
| |||
| NET INCOME / INVESTMENT |
|
| |
Bbl/Day --> | 0 | 20 | 25 | 30 |
EXPONENTIAL | 0.5 0.00 | 215.55 | 276.82 | 333.84 |
DECLINE | 4.0 0.00 | 149.78 | 193.04 | 233.31 |
RATE | 5.0 0.00 | 138.47 | 178.63 | 216.02 |
| 15.0 0.00 | 80.24 | 104.47 | 127.03 |
|
|
|
|
|
| PAYOUT-YEARS |
| ||
|
|
|
| 30 |
Bbl/Day --> | 0 | 20 | 25 | |
EXPONENTIAL | 0.5 NO PAYOUT | 0.13 | 0.10 | 0.08 |
DECLINE | 4.0 NO PAYOUT | 0,13 | 0.10 | 0.08 |
RATE | 5.0 NO PAYOUT | 0.13 | 0.10 | 0.08 |
| 15.0 NO PAYOUT | 0.13 | 0.10 | 0.08 |
| NET OIL RESERVES - bbl |
|
| |
Bbl/Day -> | 0 | 20 | 25 | 30 |
EXPONENTIAL | 0.5 0 | 153,658 | 195,712 | 234,855 |
DECLINE | 4.0 0 | 108,508 | 138,206 | 165,847 |
RATE | 5,0 0 | 100,741 | 128,312 | 153,975 |
| 15.0 0 | 60,774 | 77,407 | 92,888 |
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
PROJECT INFORMATION
BASIC DATA EVALUATION DATE
PREPARED BY
INTEREST OWNER
WELL &JOR LEASE NAME FIELD &JOR RESERVOIR COUNTY OR PARISH
(2 CAP LEI I ERS) STATE
OPERATOR' NAME
PROJ COMB NAME -(COMB#)
PROJ FILE NAME
RESERVE CATEGORY:
*EFF MONTH
"EFF YR
SELECT DISCOUNT RATE -°,10
MID-YEAR=1 YEAR-ENDS
LSEHOLD COST - $
IDC & OTHER EXP - $
TANG & LSE EQUIP - $ DIR OPR EXP/WELL -
DIR OPR EXP ESC — %
YEAR NO. TO START ESC INDIR OPR EXP- % NET REV SEV TAX - % NET OIL REV SEV TAX - % NET GAS REV SEV TAX GAS - $/Mcf
ADV TAX - % OF NET REV NET PROFIT INTEREST - %
OIL PRICE - $/BBL
OIL PRICE ESC -
OIL ESC START YEAR NO.
MAX OIL PRICE - $JBBL TRANSPORTATION - $/bbl TRANSPORTATION - $/Mcf
LOAN PRINCIPAL - $
ANNUAL INTEREST RATE % TERM C=FIX 1=DEDICATED
TOTAL NO. MONTHS (FIX)
DEDICATION OF TOT REV % SEC 29 TAX CREDIT- MI SALVAGE - %
LOSS CARRY FIND (1,0N 2,OFF)
WELL PERFORMANCE DATA
Dec-2019EXPONENTIAL DECLINE
Nova Resourc NO OF WELLS (1 or more)*1
Central Opera OIL WELL PROD - bbl/DAY540
Nettles 9-12 P G 0 R– Mcf/bbl0
Smackover GAS WELL PROD - Mcf/DAY0
MonroeCONDENSATE - bblIMMcf0
ALEXPONENT -N- DECIMAL0.00001
Central Opera Eff. DECLINE RATE - %5
12-31-2019 PI YEARS OF CONSTANT PROD0
12-31-2019 PI MAX YEARS TO CALC (4-30)30
PUDSET ECO LIMIT 1=YES 0=N01
DecECO RATE bbl OR Mcf/DAY9.4
2019 CUMULATIVE PROD - bbl0
10 CUMULATIVE PROD - Mcf0
ASSIGNED ACRES / WELL80
AVERAGE THICKNESS - FT.62
ECONOMIC and INVESTMENT DATA
0 2nd YR 3rd YR 4th YR 5th YR
5,500,0000000
3,500,0000000
12,000 INITAL W.I. OWNED - %95.0000
0.00 INITAL REVENUE INTEREST-%79.0000
0 FINAL W.1, OWNED - %95.0000
0.00 FINAL REVENUE INTEREST-%79.0000
7.10 REVERSION ACTIVATOR0
4.80 0 FOR NO REVERSION****************
0 1 FOR GROSS INCOME $0
2.002 FOR NET INCOME****************
0.00
PRICE DATA
62.63 GAS PRICE - $ills/1CF2.88
0,00 GAS PRICE ESC - %0.00
0 GAS ESC START YEAR NO.0
62,63 MAX GAS PRICE - S/MCF2.88
0.00
0.00 BOE FACTOR21.7843
INCOME TAX DATA
0 FED INCOME TAX RATE - %0
0.00 STATE INCOME TAX RATE - %0
0 RECOVERY PERIOD (5, 7, 10)5
0 DEPR METHOD (1.0, 1.5, 2.0)200%
0.00 MID-PERIOD CONVENT. CODE5
2.875 PCT DEPLETION RATE - %15
2.00 DEPL LIMITATION OF NET-%100.00
1
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
FILE NAME: 12-31-2019 PUI COMB NAME: 12-31-2019 PUD SUMMARY OF EXPONENTIAL DECLINE
EVALUATION DATE INVESTMENT NO. MONTHS PROD IN 1st YEAR ECO LIFE - YEARS | 31-Dec-2019 $9,000,000 1 GREATER 30 |
PAYOUT YRS | 1.05 |
NET INCOME/INVEST | 14.85 |
INTERNAL RATE RETURN—Mid-Year | 72.5% |
NPV @ SELECT RATE-$10.00% | $45,513,378 |
8/8 OIL RES - bbl | 2,978,136 |
8/8 GAS RES - Mcf | 0 |
NET OIL RES - bbl | 2,352,728 |
NET GAS RES - Mcf | 0 |
NET COST/BOE $/BOE | 3.83 |
NET RETURN/BOE - $/BOE | 52.96 |
NET INCOME/BOE - $IBOE | 56.79 |
WT. AVG PRICE OIL - $/bbl | 62.63 |
WT. AVG PRICE GAS - $/Mcf | 0.00 |
OIL ECO RATE - bbl/DAY | 124.7 |
GAS ECO RATE - Mcf/DAY | 0.0 |
ULT OIL RECOV/ACRE - bbl | 37,227 |
ULT GAS RECOV/ACRE - Mcf | 0 |
ULT OIL RECOV/ACRE-FT -bbl | 600 |
ULT GAS RECOV/ACRE-FT -Mcf | 0 |
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
RESERVE and ECONOMIC REPORT
PREPARED BY:Nova Resource, Inc.COMB NAME:12-31-2019 PUDCATEGORY: PUD
INTEREST OWNER:Central Operating, LLCFILE NAME:12-31-2019 PUDCOUNTY: Monroe
SELL &\OR LEASE:Nettles 9-12 PUDEVAL. DATE:31-Dec-2019STATE:AL
FIELD OR RESERVOIR:SmackoverEFFECTIVE DATE:01-Dec-2019OPERATOR: Central Operat
GROSS PRODUCTIONNET PRODUCTION PRICE PRICENET OPERATING REVENUE NET OPERATING EXPENSES
YEAROIL-BBLSGAS-MCFOIL-BBLSGAS-MCF OIL-$GAS-$OIL-6GAS-6TOTAL-6DIR L !NOR TAXES t. TRANS
| EXPONENTIAL DECLINE |
|
|
|
|
|
|
| ||||||
2019 | 16,390 |
| 12,948 | 0 | $62.63 | $0.00 6810,937 | $0 | $810,937 5950 | $73,795 | |||||
2020 | 191,311 | 0 | 161,136 | 0 | 62.63 | 0.00 9,465,622 | 0 | 9,465,622 11,400 | 861,372 | |||||
2021 | 181,746 | 0 | 143,579 | 0 | 62.63 | 0.00 8,992,342 | 0 | 8,992,342 11,400 | 818,303 | |||||
2022 | 172,658 | 0 | 138,400 | 0 | 62.83 | 0.00 8,542,725 | 0 | 8,542,725 11,400 | 777,368 | |||||
2023 | 164,025 | 0 | 129,580 | 0 | 62.63 | 0.00 8,115,589 | 0 | 8,115,589 11,400 | 738,519 | |||||
2024 | 155,824 | 0 | 123,101 | 0 | 62.63 | 0.00 7,709,811 | 0 | 7,709,811 11,400 | 701,593 | |||||
2025 | 148,033 | 0 | 116,946 | 0 | 62.63 | 0.00 7,324,321 | 0 | 7,324,321 11,400 | 666,513 | |||||
2026 | 14D,631 | 0 | 111,099 | 0 | 62.63 | 0.00 6,958,106 | 0 | 6,958,106 11,400 | 633,188 | |||||
2027 | 133,600 | 0 | 105,544 | 0 | 62.63 | 0.00 6,610,202 | 0 | 6,610,202 11,400 | 601,528 | |||||
2028 | 126,920 | 0 | 100,267 | 0 | 62.63 | 0.00 6,279,693 | 0 | 6,279,693 11,400 | 571,452 | |||||
2029 | 120,574 | 0 | 95,253 | 0 | 62.63 | 0.00 5,965,710 | 0 | 5,965,710 11,400 | 542,880 | |||||
2030 | 114,545 | 0 | 90,491 | 0 | 62.63 | 0.00 5,667,426 | 0 | 5,667,426 11,400 | 515,736 | |||||
S-TOT | 1,666,255 | 0 | 1,316,342 | 0 | WT. | WT. 82,442,485 | 0 | 82,442,485 126,350 | 7,502,266 | |||||
REM. | 1,311,881 | 0 | 1,036,386 | 0 | AVG. | AVG. 64,908,848 | 0 | 64,908,848 205,200 | 5,906,705 | |||||
TOTAL | 2,978,136 | 0 | 2,352,728 | 0 | 62.63 | 0.00 147,351,333 | 0 | 147,351,333 331,550 | 13,408,971 | |||||
|
|
| CUM. |
|
| PRINCIPAL CASH FLOW |
| PRESENT WORTH PROFILE |
| |||||
| OPERATING | CASH FLOW | CASH FLOW | CAPITAL | INT | PAYMENT AFTER DEBT | DISC | NPV DISC | NPV | |||||
YEAR | CASH FLOW-S | BTAX - $ | BTAX - S | INVESTS | 1000-$ | 1000-$ REDUCTION | RATE - % | BTAX -S RATE -% | BTAX - $ | |||||
|
|
|
| Based On Mid-Year Discounting |
| |||||||||
2019 5736,192 | ($6,263,808) | ($8,263,808) $9,000,000 0,0 | 0.0 | $736,192 2 597,705,003 | 40 $7,757,722 | |||||||||
2020 8,592,851 | 6,592,851 | 329,042 0 0.0 | 0.0 | 8,592,851 5 70,909,944 | 45 5,881,153 | |||||||||
2021 8,162,638 | 8,162,638 | 8,491,681 0 0.0 | 0.0 | 8,162,638 8 53,729,725 | 50 4,355,809 | |||||||||
2022 7,753,937 | 7,753,937 | 16,245,618 0 0.0 | 0.0 | 7,753,937 10 45,513,378 | 55 3,093,169 | |||||||||
2023 7,365,671 | 7,365,671 | 23,611,288 0 0.0 | 0.0 | 7,365,671 12 39,030,341 | 60 2,031,999 | |||||||||
2024 6,996,818 | 6,926,818 | 30,608,106 0.0 | 0.0 | 6,996,818 15 31,576,988 | 65 1,128,613 | |||||||||
2025 6,646,408 | 6,646,408 | 37,254,514 0,0 | 0,0 | 6,646,408 18 25,994,374 | 70 351,022 | |||||||||
2026 6,313,519 | 6,313,519 | 43,568,033 0,0 | 0.0 | 6,313,519 20 23.002,689 | 75 -324,728 | |||||||||
2027 5,997,274 | 5,997,274 | 49,565,306 0.0 | 0.0 | 5,997,274 25 17,261,707 | 80 -916,920 | |||||||||
2028 5,696,641 | 5,696,841 | 55,262,148 0.0 | 0.0 | 5,696,841 30 13,171,180 | 85 -1,439,745 | |||||||||
2029 5,411,430 | 5,411,430 | 60,673,578 0.0 | 0.0 | 5,411,430 35 10,118,294 | 90 -1,904,364 | |||||||||
2030 5,140,290 | 5,140,290 | 65,813,868 0.0 | 0.0 | 5,140,290 |
| |||||||||
S-TOT 74,813,868 | 65,813,868 | 65,813,868 9,000,000 0 | 0 | 74,813,868 |
| |||||||||
REM. 58,796,943 | $8,796,943 | 58,796,943 0 0 | 0 | 58,796,943 |
| |||||||||
TOTAL 133,610,812 | 124,610,812 | 124,610,812 9,000,000 0 | 0 | 133,610,812 |
| |||||||||
|
|
|
| BEFORE TAX SUMMARY | ||||||||||
|
|
|
| MONTHS IN FIRST YEAR | 1 | |||||||||
NET COST/ROE- 51BOE | 53.83 | ULT OIL RECOVERY- BBL | 2,978,136 | ECO LIFEYEARS | GREATER 30 | |||||||||
NET RETURNJBOE- 6/80E | $52.96 | ULT GAS RECOVERY- MCF | 0 | NPV 0 SELECT RATE10.0%$45,513,378 | ||||||||||
NET INCOME/130E- 6/BOE | 656.79 | ULT OIL RECOV/ACRE• BBL | 37,227 | NET INCOME / INVEST | 14.85 | |||||||||
OIL ECO RATE- BBUDAY | 124.7 | ULT GAS RECOV/ACRE- MCF | 0 | INT RATE RETURNMid-Yr | 72.51% | |||||||||
GAS ECO RATE- MCF/DAY | 0.0 | ULT OIL RECOV/ACRE-FT- BBL | 600 | PAYOUTYEARS | 1.05 | |||||||||
INIT PROD RATE- BBUDAY | 540.0 | ULT GAS RECOV/ACRE-FT- MCF | 0 | $ / NET INIT PROD RATE | 621,097 | |||||||||
!NIT PROD RATE- MCF/DA' | 0.0 | INITIAL W.I.- % | 95,0000 | 8 / 8 OIL RESERVEBBL | 2,978,136 | |||||||||
DECLINE RATE- % | 5.0 | FINAL W.I.- % | 95.0000 | 818 GAS RESERVEMCF | 0 | |||||||||
EXPONENT -N- | 0.0 | INITIAL REVENUE INT.- % | 79.0000 | NET OIL RESERVEBBL | 2,352,728 | |||||||||
|
| FINAL REVENUE INT - % | 79.0000 | NET GAS RESERVEMCF | 0 | |||||||||
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
OIL PRODUCTION
SENSITIVITY ANALYSIS
OWNER ---- Central Operating, LLC LSE/WELL--- Nettles 9-12 PUD FIELD ----Smackover | FILE NAME EVAL. DATE EFFECT DATE GAS PRICE | 12-31-2019 PDP 31-Dec-2019 01-Dec-2019 OIL PRICE | |||
FOR INVESTMENT OF | $9,000,000 |
| $2.88 | $62.63 | |
Based On Mid-Year Discounting | NET PRESENT VALUE @ | 10.0% |
| ||
INIT PROD RATE |
|
|
|
|
|
Bbl/Day -> |
| 0 | 540 | 650 | 800 |
EXPONENTIAL | 0.5 | -9,000,000 | 67,487,433 | 83,089,137 | 104,364,187 |
DECLINE | 4.0 | -9,000,000 | 49,418,260 | 61,339,206 | 77,595,042 |
RATE | 5.0 | -9,000,000 | 45,513,378 | 56,638,885 | 71,810,031 |
| 15.0 | -9,000,000 | 22,335,575 | 28,751,486 | 37,498,441 |
Based On Mid-Year Discounting | INTERNAL RATE OF RETURN -*/0 |
| |||
Bbl/Day ---> |
| 0 | 540 | 650 | 800 |
EXPONENTIAL | 0.5 | 0.0% | 77.9% | 91.4% | 109.2% |
DECLINE | 4.0 | 0.0% | 73.7% | 87.1% | 104.7% |
RATE | 5.0 | 0.0% | 72.5% | 85.9% | 103.4% |
| 15.0 | 0.0% | 60.5% | 73.4% | 90.4% |
---> 9999 97. MEANS INDETERMINATE RATE OF RETURN |
| ||||
|
| NET INCOME 1 INVESTMENT |
|
| |
Bbl/Day --> |
| 0 | 540 | 650 | 800 |
EXPONENTIAL | 0.5 | 0.00 | 26.62 | 32.05 | 39.45 |
DECLINE | 4.0 | 0.00 | 16.73 | 20.15 | 24.80 |
RATE | 5.0 | 0.00 | 14.85 | 17.88 | 22.01 |
| 15.0 | 0.00 | 5 93 | 7.16 | 8.83 |
|
| PAYOUT-YEARS |
|
| |
Bbl/Day --> |
| 0 | 540 | 650 | 800 |
EXPONENTIAL | 0.5 | NO PAYOUT | 1.02 | 0.85 | 0.69 |
DECLINE | 4.0 | NO PAYOUT | 1.04 | 0.86 | 0.70 |
RATE | 5.0 | NO PAYOUT | 1.05 | 0.87 | 0,70 |
| 15.0 | NO PAYOUT | 1.11 | 0.92 | 0.75 |
|
| NET OIL RESERVES - bbl |
|
| |
Bbl/Day --> |
| 0 | 540 | 650 | 800 |
EXPONENTIAL | 0.5 | 0 | 4,213,921 | 5,072,312 | 6,242,846 |
DECLINE | 4.0 | 0 | 2,650,734 | 3,190,699 | 3,927,014 |
Exhibit 99.1.3 Barrister/Central SEC Certified Resources
RATE | 5.0 | 0 | 2,352,728 | 2,831,987 | 3,485,522 |
| 15.0 | 0 | 941,849 | 1,136,643 | 1,402,016 |