Exhibit 3.1
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
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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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
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. ☐
Item 1.01 Entry into a Material Definitive Agreement.
As further described below, American Noble Gas, Inc., a Delaware corporation (the “Predecessor Registrant”), merged with and into its wholly owned subsidiary, American Noble Gas Inc, a Nevada corporation (the “Company”), on December 7, 2021, pursuant to an Agreement and Plan of Merger, dated as of December 7, 2021 (the “Reincorporation Merger Agreement”), with the Company continuing as the surviving corporation (the “Reincorporation Merger”). On December 7, 2021, the effective time of the Reincorporation Merger (the “Effective Time”), the Company succeeded to the assets, continued the business and assumed the rights and obligations of the Predecessor Registrant existing immediately prior to the Effective Time. The Reincorporation Merger was consummated by the filing of a certificate of merger on December 7, 2021 with the Secretary of State of the State of Delaware (the “Delaware Certificate of Merger”) and articles of merger with the Secretary of State of the State of Nevada (the “Nevada Articles of Merger”). Copies of the Delaware Certificate of Merger and the Nevada Articles of Merger are filed as Exhibits 3.1 and 3.2, respectively, and are each incorporated herein by reference. The Reincorporation Merger Agreement and transactions contemplated thereby were adopted by the holders of a majority of the outstanding shares of the Predecessor Registrant’s common stock, par value, $0.0001 per share (the “Predecessor Common Stock”) and/or Series A Convertible Preferred Stock, par value $0.0001 per share (the “Predecessor Series A Preferred Stock”), on an as-converted to Predecessor Common Stock basis, by written consent in lieu of a special meeting of stockholders, in accordance with the Delaware General Corporation Law (“DGCL”).
At the Effective Time, pursuant to the Reincorporation Merger Agreement, (i) each outstanding share of Predecessor Common Stock automatically converted into one share of common stock, par value $0.0001 per share, of the Company (“Company Common Stock”), (ii) each outstanding share of the Predecessor Series A Preferred Stock automatically converted into one share of Series A Convertible Preferred Stock, par value $0.0001 per share of the Company (“Company Series A Preferred Stock”), and (iii) each outstanding option, right or warrant to acquire shares of Predecessor Common Stock converted into an option, right or warrant to acquire an equal number of shares of Company Common Stock under the same terms and conditions as the original options, rights or warrants.
Similar to the shares of Predecessor Common Stock prior to the Reincorporation Merger, the shares of Company Common Stock are quoted on the OTCQB tier operated by the OTC Markets Group Inc. under the symbol “IFNY”. In accordance with the Reincorporation Merger Agreement, each outstanding certificate previously representing shares of Predecessor Common Stock or Predecessor Series A Preferred Stock automatically represents, without any action of the Predecessor Registrant’s stockholders, the same number of shares of Company Common Stock or Company Series A Preferred Stock, as applicable.
Pursuant to the Reincorporation Merger Agreement, at the Effective Time, the directors and officers of the Predecessor Registrant immediately prior to the Reincorporation Merger became the directors and officers of the Company and continued their respective directorship or services with the Company on the same terms as their respective directorship or service with the Predecessor Registrant immediately prior to the Effective Time.
As a result of the Reincorporation Merger, the internal affairs of the Company ceased to be subject to the DGCL or governed by the Predecessor Registrant’s Certificate of Incorporation, as amended (the “Delaware Certificate”) and its Bylaws (the “Delaware Bylaws”). As of the Effective Time, the Company is subject to the Nevada Revised Statutes (“NRS”) and is governed by the Company’s Articles of Incorporation (the “Nevada Articles”) and Bylaws (the “Nevada Bylaws”).
While the Company sought to maintain the material rights of stockholders by adopting the Nevada Articles and the Nevada Bylaws with provisions similar to the provisions of the Delaware Certificate and Delaware Bylaws, there are also key differences that may impact the rights of stockholders. A description of these differences, as well as certain differences between the NRS and the DGCL, are included in the definitive information statement filed by the Predecessor Registrant with the U.S. Securities and Exchange Commission on November 5, 2021 (the “Information Statement”), under “Additional Information Regarding the Incorporation Merger”, which is incorporated herein by reference.
The description of the Reincorporation Merger and the Reincorporation Merger Agreement contained in this Item 1.01, including those incorporated by reference to the Information Statement, does not purport to be complete and is subject to and qualified in its entirety by reference to the Reincorporation Merger Agreement, which is filed as Exhibit 2.1 hereto, and is incorporated herein by reference. The descriptions of the Nevada Articles and the Nevada Bylaws contained herein, including those incorporated by reference to the Information Statement, do not purport to be complete and are qualified in their entirety by the full text of the Nevada Articles and the Nevada Bylaws filed as Exhibit 3.3 and Exhibit 3.4, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
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This Current Report on Form 8-K is being filed for the purpose of establishing the Company as the successor issuer to the Predecessor Registrant pursuant to Rule 12g-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant to Rule 12g-3(a) under the Exchange Act, the shares of Company Common Stock, as successor issuer, are deemed registered under Section 12(g) of the Exchange Act.
Item 2.03 - Creation of A Direct Financial Obligation or an Obligation Under on Off-Balance Sheet Arrangement of a Registrant.
The disclosures set forth in Item 1.01 of this Current Report on Form 8-K are incorporated by reference into this Item 2.03.
As a result of the Reincorporation Merger, as of the Effective Time, the Company assumed and succeeded to by operation of law all of the prior liabilities and obligations of the Predecessor Registrant, and such liabilities and obligations may be enforced against the Company to the same extent as if the Company had itself incurred or contracted all such liabilities and obligations. For more information concerning these liabilities and obligations, see generally the Predecessor Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020, Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, June 30, 2021 and September 30, 2021, and Current Reports on Form 8-K filed prior to the date hereof, which are incorporated herein by reference.
Item 3.03 - Material Modification to Rights of Security Holders.
The disclosures set forth in Item 1.01 of this Current Report on Form 8-K are incorporated by reference into this Item 3.03.
Item 5.03 - Amendment to Articles of Incorporation or Bylaws; Change In Fiscal Year.
The disclosures set forth in Item 1.01 of this Current Report on Form 8-K are incorporated by reference into this Item 5.03.
Cautionary Note Regarding Forward-Looking Statements
Certain of the statements contained in this report should be considered forward-looking statements. These forward-looking statements may be identified by words such as “may,” “will,” “expect,” “intend,” “anticipate,” “believe,” “estimate,” “plan,” “project,” “could,” “should,” “would,” “continue,” “seek,” “target,” “guidance,” “outlook,” “if current trends continue,” “optimistic,” “forecast” and other similar words. Such statements include, but are not limited to, statements about the Company’s plans, objectives, expectations, intentions, estimates and strategies for the future, and other statements that are not historical facts. These forward-looking statements are based on the Company’s current objectives, beliefs and expectations, and they are subject to significant risks and uncertainties that may cause actual results and financial position and timing of certain events to differ materially from the information in the forward-looking statements. These risks and uncertainties include, but are not limited to, those set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2020 (especially in Part II, Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations), and other risks and uncertainties listed from time to time in the Company’s other filings with the U.S. Securities and Exchange Commission. There may be other factors of which the Company is not currently aware that may affect matters discussed in the forward-looking statements and may also cause actual results to differ materially from those discussed. The Company does not assume any obligation to publicly update or supplement any forward-looking statement to reflect actual results, changes in assumptions or changes in other factors affecting these forward-looking statements other than as required by law. Any forward-looking statements speak only as of the date hereof or as of the dates indicated in the statement.]
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Description | |
| Exhibit 2.1 | Agreement and Plan of Merger, dated as of December 7, 2021 | |
| Exhibit 3.1 | Certificate of Merger filed with the Secretary of State of the State of Delaware on December 7, 2021 | |
| Exhibit 3.2 | Articles of Merger filed with the Secretary of State of the State of Nevada on December 7, 2021 | |
| Exhibit 3.3 | Articles of Incorporation filed with the Secretary of State of the State of Nevada on November 23, 2021 | |
| Exhibit 3.4 | By-Laws | |
| Exhibit 4.1 | Description of Company Common Stock | |
| Exhibit 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURES
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.
| Date: December 13, 2021 | AMERICAN NOBLE GAS INC | |
| By: | /s/ Stanton E. Ross | |
| Name: | Stanton E. Ross | |
| Title: | Chairman, President and Chief Executive Officer | |
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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF
AMERICAN NOBLE GAS, INC., A DELAWARE CORPORATION
WITH AND INTO
AMERICAN NOBLE GAS INC, A NEVADA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER (the “Agreement”), dated as of December 7, 2021, by and between American Noble Gas, Inc., a Delaware corporation (“AMGAS-DE”), and American Noble Gas Inc, a Nevada corporation (“AMGAS-NV”), which corporations are sometimes referred to herein as the “Constituent Corporations.”
W I T N E S E T H:
WHEREAS, AMGAS-DE was organized and existing under the laws of the State of Delaware, pursuant to an original Certificate of Incorporation filed with the Secretary of State of the State of Delaware on April 29, 2005, as amended by that certain Corrected Instrument Certificate, along with a Corrected Certificate of Incorporation filed on September 13, 2006, a Certificate of Amendment of Certificate of Incorporation filed on November 17, 2015 and a Second Certificate of Amendment of Certificate of Incorporation filed on October 14, 2021;
WHEREAS, AMGAS-NV is a wholly-owned subsidiary of AMGAS-DE, having been incorporated under the laws of the State of Nevada, pursuant to Articles of Incorporation filed with the Secretary of State of the State of Nevada on November 23, 2021;
WHEREAS, the respective Boards of Directors of AMGAS-DE and AMGAS-NV have approved by written consent this Agreement and the merger of AMGAS-DE with and into AMGAS-NV, with AMGAS-NV continuing as the surviving company (the “Merger”);
WHEREAS, the Delaware General Corporation Law, as amended (the “DGCL”) and Chapter 78 of the Nevada Revised Statutes, as amended (the “NRS”) permit the Merger; and
WHEREAS, the Merger is intended to qualify as a “reorganization” under, and within the meaning of, Section 368(a) of the Internal Revenue Code of 1986, as amended (including the Treasury Regulations in effect thereunder, the “Code”).
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement, and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, AMGAS-DE and AMGAS-NV hereto agree as follows:
ARTICLE I
MERGER
1.1 Upon the terms and subject to the conditions of this Agreement, a Certificate of Merger (the “Certificate of Merger”) shall be duly prepared and executed by AMGAS-NV in accordance with the DGCL and filed with the Secretary of State of the State of Delaware and Articles of Merger (the “Articles of Merger”) shall be duly prepared and executed by the Constituent Companies in accordance with the NRS, and shall be filed with the Secretary of State of the State of Nevada, (together, the “Merger Certificates”). The Merger shall become effective upon the later of (a) the filing of the Merger Certificates with the Secretary of State of the State of Delaware and the Secretary of State of the State of Nevada (b) the date the Constituent Companies obtain a market effective date from the Financial Industry Regulatory Authority and (b) such other date and time as AMGAS-DE and AMGAS-NV shall agree and specify in the Merger Certificates (the “Effective Time”).
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1.2 At the Effective Time, as provided herein, AMGAS-DE shall be merged with and into AMGAS-NV, and the separate existence of AMGAS-DE shall cease to exist. AMGAS-NV shall continue to exist under the laws of the State of Nevada as the surviving entity following the Merger. The consummation of the Merger will have the effects provided in the DGCL and NRS, including, without limitation, the assets and liability of AMGAS-DE becoming the property of the AMGAS-NV following the Merger.
1.3 From time to time, as and when required by AMGAS-NV or by its successors and assigns, AMGAS-DE shall execute and deliver, or cause to be executed and delivered, all such deeds and other instruments and will take or cause to be taken such further or other action as AMGAS-NV may deem necessary in order to vest in and confirm to AMGAS-NV title to and possession of all the property, rights, privileges, immunities, powers, purposes and franchises, and all and every other interest of AMGAS-DE and otherwise to carry out the intent and purposes of this Agreement.
ARTICLE II
ARTICLES OF INCORPORATION AND BYLAWS OF SURVIVING CORPORATION
2.1 The Articles of Incorporation of AMGAS-NV, as in effect at the Effective Time, shall be the Articles of Incorporation of AMGAS-NV (the “AMGAS-NV Charter”) until duly amended in accordance with the terms thereof and the NRS.
2.2 The Bylaws of the AMGAS-NV, as in effect at the Effective Time, shall be the Bylaws of AMGAS-NV (the “AMGAS-NV Bylaws”) until duly amended in accordance with the terms thereof and the NRS.
ARTICLE III
OFFICERS AND DIRECTORS OF SURVIVING CORPORATION
3.1 The officers of AMGAS-DE immediately prior to the Effective Time shall be the officers of the AMGAS-NV immediately after the Effective time, each to hold off in accordance with the provisions of the NRS, the AMGAS-NV Charter and the AMGAS-NV Bylaws until their respective successors shall have been appointed or elected.
3.2 The directors of AMGAS-DE immediately prior to the Effective Time shall be the officers and directors of AMGAS-NV immediately after the Effective Time, and such persons shall hold the office of director in accordance with the provisions of the NRS, the AMGAS-NV Charter and AMGAS-NV Bylaws, as amended, until their respective successors shall have been appointed or elected.
3.3 If, at the Effective Time, a vacancy shall exist in the Board of Directors of AMGAS-NV, such vacancy shall be filled in the manner provided by the AMGAS-NV Bylaws.
ARTICLE IV
TREATMENT OF CAPITAL STOCK
4.1 At the Effective Time, each share of Common Stock of AMGAS-DE, par value $0.0001 per share, issued and outstanding immediately prior to the Effective Time (the “AMGAS-DE Common Stock”) shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into one (1) fully-paid and nonassessable newly issued share of common stock, par value $0.0001 per share, of AMGAS-NV (the “AMGAS-NV Common Stock”), and (ii) each outstanding share of AMGAS-NV Common Stock held by AMGAS-DE immediately prior to the Merger shall be retired and canceled. Certificates representing shares of AMGAS-DE Common Stock will represent shares of AMGAS-NV Common Stock, and upon surrender of the same to the transfer agent for AMGAS-DE, who shall continue to serve as the transfer agent for AMGAS-NV, the holder thereof shall be entitled to receive, in exchange therefor, a certificate or certificates representing the equivalent number shares of AMGAS-NV Common Stock into which the AMGAS-DE Common Stock has been converted.
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4.2 At the Effective Time, each share of Preferred Stock of AMGAS-DE, par value $0.0001 per share, issued and outstanding immediately prior to the Effective Time (the “AMGAS-DE Preferred Stock”) shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into one (1) fully-paid and nonassessable newly-issued share of common stock, par value $0.0001 per share, of AMGAS-NV (the “AMGAS-NV Preferred Stock”), and (ii) each outstanding share of AMGAS-NV Preferred Stock held by AMGAS-DE immediately prior to the Merger shall be retired and canceled. Certificates representing shares of AMGAS-DE Preferred Stock will represent shares of AMGAS-NV Preferred Stock, and upon surrender of the same to the transfer agent for AMGAS-DE, who shall continue to serve as the transfer agent for AMGAS-NV, the holder thereof shall be entitled to receive, in exchange therefor, a certificate or certificates representing the equivalent number shares of AMGAS-NV Preferred Stock into which the AMGAS-DE Preferred Stock has been converted.
4.3 At the Effective Time, each option and right to acquire AMGAS-DE Common Stock, and each warrant or other right to purchase AMGAS-DE Common Stock issued and outstanding immediately prior to the Effective Time (together, the “AMGAS-DE Options, Warrants and Rights”), shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into equivalent options, warrants and rights to purchase the number of shares of AMGAS-NV Common Stock on a one-for-one basis including at the same exercise, conversion or strike price of such converted options, warrants and rights.
4.4 At the Effective Time, all rights with respect to the AMGAS-DE Common Stock, the AMGAS-DE Preferred Stock and the AMGAS-DE Options, Warrants and Rights shall cease and terminate, and the AMGAS-DE Common Stock, the AMGAS-DE Preferred Stock and the AMGAS-DE Options, Warrants and Rights shall no longer be deemed to be outstanding, whether or not the certificate(s), if any, representing such stock have been surrendered.
4.5 At the Effective Time, each share of capital stock of AMGAS-NV issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding as shares of capital stock of AMGAS-NV.
ARTICLE V
DISSENTING SHARES
5.1 Holders of shares of AMGAS-DE Common Stock and AMGAS-DE Preferred Stock who have complied with all requirements for perfecting their rights of appraisal set forth in Section 262 of the DGCL shall be entitled to their rights under Delaware law with respect to payments to be made by AMGAS-NV in connection with the Merger.
ARTICLE
VI
TAX MATTERS
6.1 This Agreement is intended to constitute a plan of reorganization for purposes of Treasury Regulations Section 1.368-2(g) and Sections 354, 361, and 368 of the Code, and the Merger is intended to constitute a reorganization under Section 368(a) of the Code. Each party hereto shall perform, and shall cause its affiliates to perform, its United States federal income tax reporting and conforming state tax reporting in accordance with such treatment unless otherwise required by a determination as defined in Section 1313(a) of the Code.
ARTICLE VII
MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement shall be governed by, enforced under and construed in accordance with the laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule thereof, and interpreted consistent with the intent that the Merger qualify as a “reorganization” under, and within the meaning of, Section 368(a) of the Code.
7.2 EXPENSES. If the Merger becomes effective, AMGAS-NV shall assume and pay all expenses in connection therewith not theretofore paid by the respective parties. If for any reason the Merger shall not become effective, AMGAS-DE shall pay all expenses incurred in connection with all the proceedings taken in respect of this Merger Agreement or relating thereto.
7.3 AMENDMENT AND MODIFICATION. The Boards of Directors of AMGAS-DE and AMGAS-NV may amend this Agreement at any time prior to the Effective Time, provided that an amendment made subsequent to the approval of the Merger by the stockholders of AMGAS-DE may not (i) change the amount or kind of shares to be received in exchange for or on conversion of the shares of the AMGAS-DE Common Stock or the AMGAS-DE Preferred Stock; or (ii) alter or change any of the terms and conditions of this Agreement or the AMGAS-NV Charter or AMGAS-NV Bylaws if such change would adversely affect the holders of the AMGAS-DE Common Stock or AMGAS-DE Preferred Stock.
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7.4 TERMINATION. This Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time, whether before or after stockholder approval of this Agreement, or the consent of the Board of Directors of AMGAS-DE and AMGAS-NV.
7.5 AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof. An executed copy of this Agreement will be on file at the principal place of business of AMGAS-NV and, upon request and without cost, a copy thereof will be furnished to any stockholder.
7.6 COUNTERPARTS. This Merger Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
| AMERICAN NOBLE GAS INC | ||
| a Nevada corporation | ||
| By: | /s/ Stanton E. Ross | |
Stanton E. Ross Chief Executive Officer |
||
| AMERICAN NOBLE GAS, INC. | ||
| a Delaware corporation | ||
| By: | /s/ Stanton E. Ross | |
Stanton E. Ross Chief Executive Officer |
||
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Exhibit 3.1
Exhibit 3.2
Exhibit 3.3
Exhibit 3.4
Exhibit 4.1
AMERICAN NOBLE GAS INC
DESCRIPTION OF COMMON STOCK
The following is a summary of certain provisions of Nevada law and the material terms of common stock, par value $0.0001 per share of American Noble Gas Inc, a Nevada corporation (the “Company, “we” or “our), as contained in our Articles of Incorporation, filed with the Secretary of State of the State of Nevada on December 7, 2021 (the “Articles of Incorporation”) and Bylaws (the “Bylaws”) as amended. The following descriptions do not purport to be complete statements of the relevant provisions of the Articles of Incorporation, the Bylaws or the Nevada Revised Statutes, as amended (the “NRS”). You should refer to the Articles of Incorporation and the Bylaws, which are filed as exhibits to the Current Report on Form 8-K of which this Exhibit 4.1 is part, along with the applicable provisions of the NRS.
Authorized Capital Stock
Our Articles of Incorporation authorizes the issuance of up to 500,000,000 shares of common stock, par value $0.0001 per share (“Common Stock”), and up to 10,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”).
Common Stock
Holders of Common Stock are entitled to receive dividends, when and as declared, from time to time, by our board of directors (“Board”), in its discretion, out of any of our assets legally available therefore. We have not paid any cash dividends on our Common Stock since our inception, and our Board does not contemplate the payment of cash dividends on our Common Stock in the foreseeable future. Any future determination as to the declaration and payment of dividends will be at the discretion of our Board and will depend on then-existing conditions, including our financial condition, results of operations, contractual restrictions, capital requirements, business prospects and such other factors as the Board deems relevant.
Holders of Common Stock are entitled to one vote for each share held of record on all matters submitted to a vote at a meeting of our stockholders. In matters other than the election of directors, stockholder approval requires the affirmative vote of a majority of the voting power of our Common Stock present in person or represented by proxy at the meeting and entitled to vote on the matter, voting as a single class, unless the matter is one upon which, by express provision of law, our Articles of Incorporation or Bylaws, a different vote is required. Subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, election of directors is determined by a plurality of the votes cast.
Holders of Common Stock generally have no preemptive, subscription, redemption or conversion rights. The outstanding shares of Common Stock are, when issued, fully paid and nonassessable.
Subject to the terms of the Articles of Incorporation, upon our liquidation, dissolution or winding up, whether voluntary or involuntary, our remaining assets available for distribution to holders of Common Stock after payment to the holders of Preferred Stock of the specific amounts, if any, which they are entitled to receive as may be provided therein or pursuant thereto, will be distributed among the holders of Common Stock, pro rata based on the number of shares of Common Stock held by each stockholder.
Transfer Agent and Registrar
The transfer agent and registrar for our Common Stock is Action Stock Transfer Corporation, which is located at 2469 E. Fort Union Blvd, Suite 214, Salt Lake City, UT 84121 and its telephone number is (801) 274-1088.
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