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): April 27, 2015
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CHERUBIM INTERESTS, INC.
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(Exact name of registrant as specified in its charter)
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Falcon Crest Energy, Inc.
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(Former Name)
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NEVADA
| 333-150061
| 98-0585268
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(State or other jurisdiction of incorporation)
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| (IRS Employer Identification No.)
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Republic Center, 325 N. St. Paul Street, Suite 3100, Dallas Texas 75201
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(Address of principal executive offices and zip code)
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(888) 570-3698
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(Registrant's telephone number including area code)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of 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(b) under the Exchange Act (17 CFR 240.14a-12(b)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)
Forward Looking Statements
This Form 8-K and other reports filed by Cherubim Interests from time to time with the Securities and Exchange Commission (collectively the “Filings”) contain or may contain forward-looking statements and information that is based upon beliefs of, and information currently available to Cherubim Interests’s management, as well as estimates and assumptions made by management. When used in the Filings the words “anticipate,” “believe,” “estimate,” “expect,” “future,” “intend,” “plan” or the negative of these terms and similar expressions as they relate to us or our management, identify forward-looking statements. Such statements reflect our current view with respect to future events and are subject to risks, uncertainties, assumptions and other factors relating to industry, our operations and results of operations. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may differ significantly from those anticipated, believed, estimated, expected, intended or planned.
Except as required by applicable law, including the securities laws of the United States, we do not intend to update any of the forward-looking statements to conform these statements to actual results. The following discussion should be read in conjunction with the periodic reports, including the audited and unaudited consolidated financial statements therein, of Cherubim Interests as filed with the Securities and Exchange Commission.
In this Form 8-K, references to “we,” “our,” “us,” or the “Company” refer to Cherubim Interests and its subsidiaries and controlled companies.
Item 1.01 Entry Into A Material Definitive Agreement
Pursuant to an Agreement and Plan of Reorganization dated April 27, 2015, the Company agreed to acquire all of the membership interests of Cherubim Interests, LLC, a limited liability company, from Victura Construction Group, Inc. (“Victura”). Victura is an affiliate of Patrick Johnson, a director and President of the Company, and is a non-reporting public company trading under the symbol VICT. The acquisition closed on April 27, 2015. Pursuant to the acquisition, the Company has (a) effected a 1-for-15 reverse stock split, such that the 83,626,881 outstanding shares of common stock will be reclassified as 5,575,125 shares of new common stock; (b) issued 60 million shares of new common stock to Victura in the exchange; (b) amended the Articles of Incorporation to change the name of the Company to “Cherubim Interests, Inc., “ and (c) accepted the resignation of director and officer Terry Lynch and the appointment of new directors to serve with Patrick Johnson.
As a result, there are approximately 65,575,125 outstanding shares of Common Stock, plus some number of additional shares (estimated not to exceed 1,000) to be issued for rounding of the reverse stock split.
On or about April 27, 2015, the Company assigned its interest in the Rocky Ford oil and gas lease to outgoing director Terry Lynch in settlement of its debt of $280,000 in compensation and severance benefits due to him.
The acquisition of Cherubim and the disposition of the Rocky Ford lease reflects the Company’s change of business direction from oil and gas (resulting from the recent decline in market prices) and its adoption of his new business strategy to construct retail and grow facilities for the medical cannabis industry.
Item 2.01 Completion of Acquisition or Disposition of Assets
See disclosure in Item 1.01.
Item 3.02. Unregistered Sales of Equity Securities.
On the Closing, we issued 60,000,000 new shares of Common Stock of the Company to one person, Victura. We had previously issued 10,000,000 old shares (666,667 new shares) to our director and President, Patrick Johnson, for accrued compensation of $172,000. The issuances of shares were exempt under Section 4(2) of the Securities Act as a transaction not involving any public offering or solicitation and also exempt under Section 4(6) as an offering solely to accredited persons.
Item 5.01 Changes In Control of the Registrant
Prior to the Closing, the Company was controlled by Patrick Johnson and Terry Lynch, who were its officers, directors and holders of 25,000,000 and 15,000,000 of the 83,626,181 outstanding shares. A change of control took place on April 30, 2015 and control is now held by the persons set forth in the following table. .
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Name
| Office
| Number of Shares
| Percentage
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Patrick Johnson
| President/CEO/Director
| 61,666,667(2)
| 94.0%
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Gary Fewell
| Chief Operating Officer/Director
| 60,000,000(3)
| 91.5%
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Charly Everett
| Director
| 60,000,000(3)
| 91.5%
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Corbin Grubbs
| Chief Financial Officer
| 60,000,000(3)
| 91.5%
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All officers
and directors
as a group (4 persons)
| | 61,666,667(2)(3)
| 94.0%
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1)
Except as otherwise noted, shares are owned beneficially and of record, and such record shareholder has sole voting, investment, and dispositive power.
2)
As to Patrick Johnson, includes 11,666,667 shares held directly and 60,000,000 shares held by Victura, which are deemed to be beneficially owned by Mr. Johnson due to his status as an executive officer and director of Victura.
3)
Includes 60,000,000 shares held by Victura, which are deemed to be beneficially owned by this person due to his status as an executive officer and/or director of Victura.
Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
On April 28, 2015, Terry Lynch resigned as an officer and director. He was provided the opportunity to provide a statement regarding his resignation to be filed with this 8-K and declined to do so.
Effective April 27, 2015 the following persons joined Patrick Johnson and officers and directors:
Gary Fewell, age 53 Chief Operating Officer and Director, has held the same position at Victura since March 2014. Mr. Fewell has benefited from the mentorship of highly recognized oil and gas professionals for over 15 years, during which time he coordinated a number of oil and gas projects from conception through completion. He specializes in identifying potential long-term growth opportunities and in developing upstream projects in oil and gas development. Mr. Fewell has more than 20 years of relevant experience in both management and work environments ranging from Fortune 500 companies to start-up businesses. He has extensive experience in financial analysis, procurement, budget management, and all phases of project development.
Charly Everett, age 55, Director, has held the same position at Victura Construction since March 2014. Charly is the architect of Cherubim Builders Group, the flagship subsidiary of Victura Construction Group, Inc. Since its organization, Cherubim Builders Group has been an industry leader in construction services, offering several distinctive divisions including Gregg Construction (1972), WaterMasters Restoration (1999), and Designer Lane (2011). Together, they offer specialists in mitigation and restoration, renovation, remodeling, new construction and construction materials supply. Charly brings a deep and broad understanding of operations and team building, having served for over 15 years in the roles of Store Operations, Training and Development and Human Resources for Racetrac Petroleum prior to joining forces with WaterMasters at its inception. Subsequently adding Gregg Construction in 2005 and creating Designer Lane in 2011, Cherubim Builders Group was formed in 2012 to offer industry expert capabilities in all construction and supply areas. Charly’s reputation for integrity and service is unparalleled in the industry.
Corbin Grubbs, age 38 Chief Financial Officer, has held the same position at Victura since February 2015. Grubbs, a graduate of Texas Tech University, is the former Director and Chief Financial Officer of a privately held nationally recognized debt purchaser. For over eight years he was an instrumental part of the executive management team that eventually sold the Company’s portfolio of assets to a larger publically held debt buyer. He currently serves as the Chief Financial Officer of Victura Construction Group and has over 20 years of accounting and financial business experience. Prior to this engagement, Corbin has held various management and leadership positions with both private and publically held organizations within the automotive, healthcare, financial services, and manufacturing industries.
LaDonna Thorne, age 46, VP of Corporate Development and Secretary, has held the same position at Victura Construction since March 2014. Thorne, has over 20 years of experience in marketing, advertising and special events across several industries including a 75-store retail chain and a national magazine publisher. She has organized media campaigns and events that have taken place from Wall Street and in the Halls of the Capitol, to food events twice featured as Food Network Specials. She has developed branding for magazine titles, catalogs and new product lines. In addition, LaDonna has experience in the real estate and oil and gas sectors in lease negotiation and acquisitions.
Currently, the Company does not have any independent directors. Since the Company’s Common Stock is not currently listed on a national securities exchange, we have used the definition of “independence” of The NASDAQ Stock Market to make this determination.
Under NASDAQ Listing Rule 5605(a)(2), an "independent director" is a "person other than an officer or employee of the company or any other individual having a relationship which, in the opinion of the company's board of directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director."
We do not currently have a separately designated audit, nominating or compensation committee.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
By consent action of the Board of Directors dated April 27, 2015, and consent action of the majority shareholders of the Company holding 45 million of the 83,626,881 outstanding shares, the Company adopted amendments to its Articles of Incorporation and bylaws. Some of these amendments were required by the Agreement, and others were effected to modernize the charter documents and position the Company for potential future capital raises. The Amendment to the Articles of Incorporation is expected to be filed on April 29, 2015. These amendments are as follows:
The name of the Company was changed to “Cherubim Interests, Inc.
A 1-for ten reverse stock split was effected, with fractional shares rounded to the next highest whole share.
The number of common shares authorized remained at 200 million, but the Articles were amended to permit the issuance of up to 10 million shares of preferred stock, with the rights and preferences to be determined by the Board of Directors.
Par value was decreased from $.001 to $.0001
The Company will be required to indemnify its officers and directors to the fullest extent permitted by the Nevada General Corporation Law.
Standard provisions regarding the ability of an officer or director to engage in transactions with the Company were added to the Articles.
The Bylaws previously provided that only the shareholders could set the number of directors, within the range of 1-9 persons. The Bylaws were amended to permit the directors to vary the number of authorized directors.
Item 8.01 Other Events.
Cherubim Interests was historically a subsidiary of Victura Construction Group, which has twelve operating, vertically- integrated subsidiaries in the construction industry. Victura has a dynamic pipeline of activity that includes new, well-defined opportunities as well as the potential for uncovering new business development opportunities and relationships. Current relationships provide for a solid, calculable, recession proof business with multiple internationally recognized insurance companies. These Fortune 500 multinational firms offer Victura a fantastic growth opportunity in the United States and Canada when coupled with the right strategic capital partners and marketing campaigns. Cherubim Interests aims to fulfill its vision to be a leader in alternative construction projects, as well as mixed- use and multi-family real estate development, management, and investment.
Item 9.01 Financial Statement and Exhibits.
(a) Financial Statements of Business Acquired.
Audited financial statements of Cherubim for the two years ended December 31, 2014 (or such lesser periods since inception) will be filed via amendment within 75 days of the Closing.
(b) Pro Forma Financial Information.
Unaudited proforma statements will be filed via amendment within 75 days of the Closing.
(c) Shell Company Transactions.
Not applicable.
(d) Exhibits.
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Exhibit No.
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| Description
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2.1
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| Agreement and Plan of Reorganization between the Company and Cherubim Interests, LLC dated April 27, 2015.
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3.3
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| Amendment to Articles of Incorporation
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3.4
| | Amendment to Bylaws
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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 thereunto duly authorized.
Date: April 29, 2015
CHERUBIM INTERESTS, INC.
By: /s/ Patrick Johnson
Name: Patrick Johnson
Title: Chief Executive Officer
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the “Agreement”) is dated April 27, 2015, and is by and between Falcon Crest Energy, Inc., a Nevada corporation (the “Company”) and Cherubim Interests, LLC, a Texas limited liability company (“Cherubim”).
R E C I T A L S
WHEREAS, the sole member of Cherubim ("Shareholders") is Victura Construction Group, Inc. (“Victura”) and owns all of the membership interests of Cherubim (the “Cherubim Interests’);
WHEREAS, the Company is a public company, and files annual, quarterly and other reports on a voluntary basis on the SEC’s EDGAR system;
WHEREAS, the Board of Directors of the Company and Cherubim deem it advisable that the acquisition by the Company of Cherubim be effected through an exchange (the "Exchange") of Cherubim Interests pursuant to this Agreement;
WHEREAS, the Company desires to acquire all of the outstanding Cherubim Interests for shares of Common Stock of the Company.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and in reliance upon the representations and warranties hereinafter set forth, the parties agree as follows:
I. EXCHANGE
1.01. Exchange. Victura shall exchange all of its Cherubim Interests for a total of 60,000,000 (post reverse stock split) shares of Common Stock of the Company (the "Common Stock") at the Closing of this Agreement. Immediately prior to Closing there shall be 83,826,881 pre-split shares of Common Stock outstanding, and it is anticipated that the Company will effect a 1-for-15 reverse stock split so that after Closing the Company shall have outstanding approximately 65,575,125 shares of Common Stock.
1.02. Closing. The Closing of the transactions contemplated by this Agreement (the "Closing") shall take place on or before May 5, 2015 at the corporate offices of Cherubim.
1.03. Deliveries. Upon Closing, the parties are delivering the following documents:
1.03(a). The items and documents set forth in Sections 1.01 and 1.02.
1.03(b). The Company shares of Common Stock described in Section 1.02.
1.03(c). The Company shall deliver the resignations of Terry Lynch as an officer and director, and board resolutions electing Gary Fewell and Charly Everett as Directors, Gary Fewell as Chief Operating Officer, and Corbin Grubbs as Chief Financial Officer and Secretary.
1.04. Filings. Immediately following the Closing, the Company shall file the following documents:
1.04(a). A Current Report on Form 8-K with the U.S. Securities and Exchange Commission, reporting the transactions set forth in this Agreement.
1.04(b). A Certificate of Amendment to the Certificate of Incorporation of the Company with the Nevada Secretary of State changing the name of the Company to "Cherubim Interests, Inc.,” or a similar name as may be determined by the Board of Directors, and effecting the reverse stock split.
II. REPRESENTATIONS AND WARRANTIES OF CHERUBIM
Cherubim represents and warrants to the Company as follows, as of the date of this Agreement and as of the Closing:
2.01. Organization.
2.01(a). Cherubim is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Texas; Cherubim has the power and authority to carry on its business as presently conducted; and Cherubim is qualified to do business in all jurisdictions where the failure to be so qualified would have a material adverse effect on its business.
2.02. Capitalization.
2.02(a). All of the Cherubim Interests are held by Victura.
2.02(b). There are no outstanding options, warrants, or rights to purchase any securities of Cherubim.
2.03. Subsidiaries and Investments. Cherubim does not own any capital stock or have any interest in any corporation, partnership or other form of business organization, except as described in Exhibit 2.03 hereto.
2.04. Financial Statements. The unaudited financial statements of Cherubim as of and for the two years ended December 31, 2014 present fairly the financial position and results of operations of Cherubim, on a consistent basis.
2.05. No Undisclosed Liabilities. To the best knowledge of Cherubim, other than as described in Exhibit 2.05 attached hereto, Cherubim is not subject to any material liability or obligation of any nature, whether absolute, accrued, contingent, or otherwise and whether due or to become due, which is not reflected or reserved against in the Financial Statements, except those incurred in the normal course of business.
2.06. Absence of Material Changes. Since December 31, 2014, except as described in any Exhibit attached hereto or as required or permitted under this Agreement, there has not been:
2.06(a). any material adverse change in the condition (financial or otherwise) of the properties, assets, liabilities or business of Cherubim, except changes in the ordinary course of business which, individually and in the aggregate, have not been materially adverse;
2.06(b). any redemption, purchase or other acquisition of any shares of the capital stock of Cherubim, or any issuance of any shares of capital stock or the granting, issuance or exercise of any rights, warrants, options or commitments by Cherubim relating to their authorized or issued capital stock; or
2.06(c). any change or amendment to the Articles of Organization of Cherubim.
2.07. Litigation. Except as set forth in Exhibit 2.07 attached hereto, to the best knowledge of Cherubim there is no litigation, proceeding or investigation pending or threatened against Cherubim affecting any of its properties or assets against any officer, director, or stockholder of Cherubim that might result, either in any case or in the aggregate, in any material adverse change in the business, operations, affairs or condition of Cherubim or its properties or assets, or that might call into question the validity of this Agreement, or any action taken or to be taken pursuant hereto.
2.08. Title To Assets. Cherubim has good and marketable title to all of its assets and properties now carried on its books including those reflected in the balance sheets contained in the Financial Statements, free and clear of all liens, claims, charges, security interests or other encumbrances, except as described in Exhibit 2.08 attached hereto or any other Exhibit.
2.09. Transactions with Affiliates, Directors and Shareholders. Except as set forth in Exhibit 2.09 attached hereto, there are and have been no contracts, agreements, arrangements or other transactions between Cherubim, and any officer, director, or stockholder of Cherubim, or any corporation or other entity controlled by Victura or any affiliate of Victura.
2.10. No Conflict. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or result in a breach of any term or provision of, or constitute a default under, the Articles of Incorporation or Bylaws of Cherubim, or any agreement, contract or instrument to which Cherubim is a party or by which it or any of its assets are bound.
2.11. Disclosure. To the actual knowledge of Cherubim, neither this Agreement, the Financial Statements nor any other agreement, document, certificate or written or oral statement furnished to the Company by or on behalf of Cherubim in connection with the transactions contemplated hereby, contains any untrue statement of a material fact or when taken as a whole omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
2.12. Authority. Cherubim has full power and authority to enter into this Agreement and to carry out the transactions contemplated herein. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly authorized and approved by the Board of Directors of Cherubim and, other than the approval by the Shareholders of Cherubim described in Section 6.04, no other corporate proceedings on the part of Cherubim are necessary to authorize this Agreement and the transactions contemplated hereby.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Cherubim as follows, as of the date of this Agreement and as of the Closing:
3.01. Organization.
3.01(a). The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada; has the corporate power and authority to carry on its business as presently conducted; and is qualified to do business in all jurisdictions where the failure to be so qualified would have a material adverse effect on the business of the Company.
3.01(b). The copies of the Articles of Incorporation, of the Company and the Bylaws of the Company posted on EDGAR are complete and correct copies of the Articles of Incorporation and the Bylaws of the Company as amended and in effect on the date hereof. All minutes of meetings and actions in writing without a meeting of the Board of Directors and shareholders of the Company are contained in the minute book of the Company and no minutes or actions in writing without a meeting have been included in such minute book since such delivery to Cherubim that have not also been delivered to Cherubim.
3.02. Capitalization of the Company. The authorized capital stock of the Company consists of 200,000,000 shares of Common Stock, par value $.001 per share, of which approximately 5,575,125 will be outstanding at Closing giving effect to the reverse stock split. All outstanding shares are duly authorized, validly issued, fully paid and non-assessable.
3.03. Subsidiaries and Investments. The Company does not own any capital stock or have any interest in any corporation, partnership, or other form of business organization.
3.04. Authority. The Company has full power and authority to enter into this Agreement and to carry out the transactions contemplated herein. The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the issuance of the Company Shares in accordance with the terms hereof, have been duly authorized and approved by the Board of Directors of the Company and no other corporate proceedings on the part of Company are necessary to authorize this Agreement, the transactions contemplated hereby and the issuance of the Company Shares in accordance with the terms hereof.
3.05. No Undisclosed Liabilities. Other than as described in Exhibit 3.05 attached hereto, or in its EDGAR filings, the Company is not subject to any material liability or obligation of any nature, whether absolute, accrued, contingent, or otherwise and whether due or to become due.
3.06. Litigation. There is no litigation, proceeding or investigation pending or to the knowledge of the Company, threatened against the Company affecting any of its properties or assets, or, to the knowledge of the Company, against any officer, director, or stockholder of the Company that might result, either in any case or in the aggregate, in any material adverse change in the business, operations, affairs or condition of the Company or any of its properties or assets, or that might call into question the validity of this Agreement, or any action taken or to be taken pursuant hereto.
3.07. Title To Assets. The Company has good and marketable title to all of its assets and properties now carried on its books including those reflected in the balance sheet contained in the Company's financial statements, free and clear of all liens, claims, charges, security interests or other encumbrances, except as described in the balance sheet included in the Company's financial statements or on any Exhibits attached hereto.
3.08. Contracts and Undertakings. Exhibit 3.08 attached hereto contains a list of all contracts, agreements, leases, licenses, arrangements, commitments and other undertakings to which the Company is a party or by which it or its property is bound. Each of said contracts, agreements, leases, licenses, arrangements, commitments and undertakings is valid, binding and in full force and effect. The Company is not in material default, or alleged to be in material default, under any contract, agreement, lease, license, commitment, instrument or obligation and, to the knowledge of the Company, no other party to any contract, agreement, lease, license, commitment, instrument or obligation to which the Company is a party is in default thereunder nor, to the knowledge of the Company, does there exist any condition or event which, after notice or lapse of time or both, would constitute a default by any party to any such contract, agreement, lease, license, commitment, instrument or obligation.
3.09. Underlying Documents. Copies of all documents described in any Exhibit attached hereto (or a summary of any such contract, agreement or commitment, if oral) have been made available to Cherubim and are complete and correct and include all amendments, supplements or modifications thereto.
3.10. Transactions with Affiliates, Directors and Shareholders. Except as set forth in Exhibit 3.10 hereto, there are and have been no contracts, agreements, arrangements or other transactions between the Company, and any officer, director, or 5% stockholder of the Company, or any corporation or other entity controlled by any such officer, director or 5% stockholder, a member of any such officer, director or 5% stockholder's family, or any affiliate of any such officer, director or 5% stockholder.
3.11. No Conflict. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or result in a breach of any term or provision of, or constitute a default under, the Certificate of Incorporation or Bylaws of the Company, or any agreement, contract or instrument to which the Company is a party or by which it or any of its assets are bound.
3.12. Disclosure. To the actual knowledge of the Company, neither this Agreement nor any other agreement, document, certificate or written or oral statement furnished to Cherubim and the Shareholders by or on behalf of the Company in connection with the transactions contemplated hereby, contains any untrue statement of a material fact or when taken as a whole omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
3.13. Financial Statements. The financial statements of the Company set forth in its Form 10-K for the year ended August 31, 2014 and its Form 10-Q for the quarter ended November 30, 2014 present fairly the financial position and results of operations of the Company, on a consistent basis.
3.14. Absence of Material Changes. Since November 30, 2014, except as described in any Exhibit hereto or as required or permitted under this Agreement, there has not been:
3.14(a). any material change in the condition (financial or otherwise) of the properties, assets, liabilities or business of Company, except changes in the ordinary course of business which, individually and in the aggregate, have not been materially adverse.
3.14(b). any redemption, purchase or other acquisition of any shares of the capital stock of the Company, or any issuance of any shares of capital stock or the granting, issuance or exercise of any rights, warrants, options or commitments by Cherubim relating to their authorized or issued capital stock.
3.14(c). any amendment to the Certificate of Incorporation of the Company.
IV. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All representations, warranties and covenants of the Company and Cherubim contained herein shall survive the consummation of the transactions contemplated herein and remain in full force and effect.
V. CONDITIONS TO CLOSING
5.01. Conditions to Obligation of Cherubim. The obligations of Cherubim under this Agreement shall be subject to each of the following conditions:
5.01(a). The representations and warranties of the Company herein contained shall be true in all material respects at the Closing with the same effect as though made at such time. The Company shall have performed in all material respects all obligations and complied in all material respects, to its actual knowledge, with all covenants and conditions required by this Agreement to be performed or complied with by it at or prior to the Closing.
5.01 (b). No injunction or restraining order shall be in effect, and no action or proceeding shall have been instituted and, at what would otherwise have been the Closing, remain pending before a court to restrain or prohibit the transactions contemplated by this Agreement.
5.01(c). All statutory requirements for the valid consummation by the Company of the transactions contemplated by this Agreement shall have been fulfilled. All authorizations, consents and approvals of all governments and other persons required to be obtained in order to permit consummation by the Company of the transactions contemplated by this Agreement shall have been obtained.
5.01(d). The fulfillment of the obligations of the Company set forth in Section 6.02.
5.02. Conditions to Obligations of the Company. The obligation of the Company under this Agreement shall be subject to the following conditions:
5.02(a). The representations and warranties of Cherubim herein contained shall be true in all material respects as of the Closing, and shall have the same effect as though made at the Closing; Cherubim shall have performed in all material respects all obligations and complied in all material respects, to its actual knowledge, with all covenants and conditions required by this Agreement to be performed or complied with by it prior to the Closing.
5.02(b). No injunction or restraining order shall be in effect prohibiting this Agreement, and no action or proceeding shall have been instituted and, at what would otherwise have been the Closing, remain pending before the court to restrain or prohibit the transactions contemplated by this Agreement.
5.02(c). All statutory requirements for the valid consummation by Cherubim of the transactions contemplated by this Agreement shall have been fulfilled. All authorizations, consents and approvals of all governments and other persons required to be obtained in order to permit consummation by Cherubim of the transactions contemplated by this Agreement shall have been obtained.
VI. CERTAIN AGREEMENTS
6.01. Reverse Stock Split. The Company shall effect a one-for-15 reverse stock split immediately prior to Closing. The Company shall file all necessary documents with FINRA to cause the reverse stock split, and the name change, on the trading market.
6.02. Sale of Rocky Ford. The Company shall enter into an agreement to transfer the Rocky Ford lease interests to Terry Lynch or his designee within 30 days of the Closing, on terms that may be agreed upon.
VII. MISCELLANEOUS
7.01. Finder's Fees, Investment Banking Fees. Neither Cherubim nor the Company have retained or used the services of any person, firm or corporation in such manner as to require the payment of any compensation as a finder or a broker in connection with the transactions contemplated herein.
7.02. Tax Treatment. The transactions contemplated hereby are intended to qualify as a so-called “tax-free” reorganization under the provisions of Section 368 of the Code. The Company and Cherubim acknowledge, however, that they each have been represented by their own tax advisors in connection with this transaction; that neither has made any representation or warranty to the other with respect to the treatment of such transaction or the effect thereof under applicable tax laws, regulations, or interpretations; and that no attorney's opinion or private revenue ruling has been obtained with respect to the effects thereof under the Internal Revenue Code of 1986, as amended.
7.03. Further Assurances. From time to time, at the other party's request and without further consideration, each of the parties will execute and deliver to the others such documents and take such action as the other party may reasonably request in order to consummate more effectively the transactions contemplated hereby.
7.04. Parties in Interest. Except as otherwise expressly provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective heirs, beneficiaries, personal and legal representatives, successors and assigns of the parties hereto.
7.05. Entire Agreement; Amendments. This Agreement, including the Schedules, Exhibits and other documents and writings referred to herein or delivered pursuant hereto, which form a part hereof, contains the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, warranties, covenants or undertakings other than those expressly set forth herein or therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Agreement may be amended only by a written instrument duly executed by the parties or their respective successors or assigns.
7.06. Headings, Etc. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretations of this Agreement.
7.07. Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person, persons, entity or entities may require.
7.08. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
7.09. Governing Law. This Agreement shall be governed by the laws of the State of Delaware (excluding conflicts of laws principles) applicable to contracts to be performed in the State of Delaware.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties hereto as the date first above written.
FALCON CREST ENERGY, INC.
CHERUBIM INTERESTS, LLC
By: /s/ Patrick Johnson
By: /s/ Charley Everett
Patrick Johnson, CEO
Charly Everett, for Member Victura Construction Group, Inc
CERTIFICATE OF AMENDMENT
(pursuant to NRS 78.385 and 78.390)
1.
Name of Corporation: Falcon Crest Energy, Inc.
2.
The articles have been amended as follows:
Articles 1 and 3 are hereby amended in their entirety, and new Articles 8 to 11 inclusive shall be appended to the Articles of Incorporation, to read as follows:
Article 1
The name of the corporation is Cherubim Interests, Inc.
Article 3
The number of authorized shares is 200,000,000 shares of common stock and 10,000,000 shares of preferred stock, all par value $.0001. The preferred stock may be issued in one or more series, and with such voting powers, designations, limitations, restrictions and relative rights as may be established by resolution of the Board of Directors acting pursuant to Section 78.1955 of the Nevada General Corporation Law. Effective on the filing of the amendment of this Article 3 with the Nevada Secretary of State, each fifteen outstanding shares of common stock shall be reclassified as one new share; in lieu of fractional shares, the number of new shares to be issued will be rounded to the next whole share.
Article 8
No capital stock issued by the corporation shall be assessable following payment of the subscription price or par value therefor.
Article 9
Every person who was or is a party or is threatened to be a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or a person of whom he is the legal representative is or was a director, officer, employee, agent or other person of the corporation, or is or was serving at the request of the corporation or for its benefit as a director, officer employee or other person of another corporation, partnership, joint venture, trust or enterprise, shall be indemnified and held harmless to the fullest extent legally permissible under the law of the State of Nevada as it may be amended from time to time against all expenses, liability and loss (including attorneys' fees, judgments, fines and amounts paid or to be paid in settlement) reasonably incurred or suffered by him in connection therewith. The expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay the
Amount if it is ultimately determined by a court of competent jurisdiction that he is not entitled to be indemnified by the corporation. Such right of indemnification shall be a contract right which may be enforced in any manner desired by such person. Such right of indemnification shall not be exclusive of any other right which such directors, officers, employees, agents or other persons may have or hereafter acquire and, without limiting the generality of such statement they shall be entitled to their respective rights or indemnification under any bylaw, agreement, vote of stockholders, provisions of law or otherwise, as well as their rights under this Article.
Without limiting the application of the foregoing, the board of directors may adopt bylaws from time to time with respect to indemnification permitted by the law of the State of Nevada and may cause the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, agent or other person of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, agent or other person of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out os such status whether or not the corporation would have the power to indemnify such person.
Article 10
A director of officer of the corporation shall not be personally liable to this corporation or its stockholders for damages for breach of fiduciary duty as a director or officer, but this Article shall not eliminate or limit the liability of a director or officer for (i) acts or omissions which involve intentional misconduct, fraud or knowing violation of law or (ii) the unlawful payment of dividends. Any repeal or modification of this Article by the stockholders of the corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of the director or officer of the corporation for acts or omissions prior to such repeal or modification.
Article 11
A director or officer of the corporation shall not be disqualified by his office from dealing or contracting with the corporation as a vendor, purchaser, employee, agent or otherwise.
No transaction, contract or act of the corporation shall be void or voidable or in any way affected or invalidated by reason of the fact that any director or officer of any corporation is a member of any firm, a shareholder, director or officer of the corporation or trustee or beneficiary of any trust that is in any way interested in such transaction, contract or act. No director or officer shall be accountable or responsible to the corporation for or in respect to any transaction, contract or act of the corporation for any gain or profit directly or indirectly realized by him by reason of the fact that he or any firm in which he is a member or any corporation of which he is a trustee, or beneficiary, is interested in such transaction, contract, or act; provided
The fact that such director or officer or such firm, corporation or trust is so interested shall have been disclosed or shall have been known to the members of the Board of Directors as shall be present at any meeting at which action upon such contract, transaction or act shall have been taken. Any director may be counted in determining the existence of a quorum at any meeting of the Board of Directors which shall authorize or take action in respect to any such contract, transaction or act, and may vote thereat to authorize, ratify or approve any such contract, transaction or act, and any officer of the corporation may take any action within the scope of his authority, respecting such contract, transaction or act, and any officer of the corporation of which he is a shareholder, director or officer, or any trust of which he is a trustee or beneficiary, were not interested in such transaction, contract or act. Without limiting or qualifying the foregoing, if in any judicial other inquiry, suit, cause or proceeding, the question of whether a director or officer of the corporation has acted in good faith is material, and notwithstanding any statute or rule of law or equity to the contrary (if any there be), his good faith shall be presumed in the absence of proof to the contrary by clear and convincing evidence.
3.
The vote by which the stockholders holding shares in the corporation entitling them to exercise at least a majority of the voting power, or such greater proportion of the voting power as may be required in the case of a vote by class or classes, or as may be required by the provisions of the articles of incorporation have vote in favor of the amendment is: 53.8%.
4.
Effective date and time of filing (optional) Date: (blank) Time: (blank)
5.
Signature:
/s/ Patrick Johnson
Patrick Johnson, President