|
Item 1.01
|
Entry into a Material Definitive Agreement.
|
Sixth Amendment to Arrangement
Agreement
As previously disclosed in
the current report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on December 14, 2020, on that date,
Torchlight Energy Resources, Inc. (“Torchlight”) and its newly formed subsidiaries, Metamaterial Exchangeco Inc. (formerly
named 2798832 Ontario Inc., “Canco”) and 2798831 Ontario Inc. (“Callco”), both Ontario corporations, entered into
an Arrangement Agreement (the “Arrangement Agreement”) with Metamaterial Inc., an Ontario corporation headquartered in Nova
Scotia, Canada (“Metamaterial” and, together with Torchlight, Callco and Canco, the “Parties”), to acquire all
of the outstanding common shares of Metamaterial by way of a statutory plan of arrangement (the “Arrangement”) under the Business
Corporations Act (Ontario), on and subject to the terms and conditions of the Arrangement Agreement. On February 3, 2021, the
Parties agreed to amend the Arrangement Agreement as disclosed on the Form 8-K filed by Torchlight with the SEC on February 3, 2021, on
March 11, 2021, the Parties agreed to further amend the Arrangement Agreement pursuant to a Second Amendment to Arrangement Agreement
as disclosed on the Form 8-K filed by Torchlight with the SEC on March 15, 2021, on March 31, 2021, the Parties agreed to further amend
the Arrangement Agreement pursuant to a Third Amendment to Arrangement Agreement as disclosed on the Form 8-K filed by Torchlight with
the SEC on April 1, 2021, on April 15, 2021, the Parties agreed to further amend the Arrangement Agreement pursuant to a Fourth Amendment
to Arrangement Agreement as disclosed on the Form 8-K filed by Torchlight with the SEC on April 15, 2021, and on May 2, 2021, the Parties
agreed to further amend the Arrangement Agreement pursuant to a Fifth Amendment to Arrangement Agreement as disclosed on the Form 8-K
filed by Torchlight with the SEC on May 4, 2021.
On June 18, 2021, the Parties
agreed to further amend the Arrangement Agreement pursuant to a Sixth Amendment to Arrangement Agreement, dated June 18, 2021 (the “Sixth
Amendment”). The Sixth Amendment amends the Arrangement Agreement to extend the Outside Date, as such term is defined in the Arrangement
Agreement, to June 30, 2021.
The description of the Sixth
Amendment set forth herein does not purport to be complete and is qualified in its entirety by reference to the full text of the Sixth
Amendment which is attached to this current report as Exhibit 2.1 and incorporated by reference herein.
Amended and Restated Sales
Agreement
On June 21, 2021, Torchlight
entered into an Amended and Restated Sales Agreement (the “A&R Sales Agreement”) with Roth Capital Partners, LLC (the
“Agent”) to increase the aggregate offering price of shares of Torchlight’s common stock, par value $0.001 per share
(“Common Stock”) that Torchlight may issue and sell through its “at-the-market” equity offering program with the
Agent, from time to time at its sole discretion, from $100,000,000 to up to $250,000,000 (the “Shares”). The A&R Sales
Agreement amends and restates the Sales Agreement, dated June 16, 2021, by and between Torchlight and the Agent.
Subject to the terms and
conditions of the A&R Sales Agreement, the Agent will use its commercially reasonable efforts to sell the Shares from time to time,
based upon Torchlight’s instructions. Torchlight has no obligation to sell any of the Shares, and may, at any time, suspend the
sale of the Shares under the A&R Sales Agreement upon proper notice to the other party. The A&R Sales Agreement will terminate
upon the issuance and sale of all of the Shares through or to the Agent, unless earlier terminated in accordance with its terms.
Torchlight has provided the
Agent with customary indemnification rights, and the Agent will be entitled to an aggregate fixed commission of 3.0% of the gross proceeds
from Shares sold through the Agent under the A&R Sales Agreement.
Sales of the Shares under
the A&R Sales Agreement will be made in transactions that are deemed to be “at-the-market offerings” as defined in Rule
415 under the Securities Act of 1933, as amended (the “Securities Act”), including sales made by means of ordinary brokers’
transactions, including on The Nasdaq Capital Market, at market prices or as otherwise agreed to with the Agent.
The foregoing description
of the A&R Sales Agreement set forth herein does not purport to be complete and is qualified in its entirety by reference to the full
text thereof, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference. The
A&R Sales Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended
to provide any other factual information about Torchlight or its subsidiaries and affiliates. The A&R Sales Agreement contains representations
and warranties by Torchlight made solely for the benefit of the Agent. The assertions embodied in those representations and warranties
are subject to qualifications and limitations agreed to by the respective parties in negotiating the terms of the A&R Sales Agreement.
Moreover, certain representations and warranties in the A&R Sales Agreement were made as of a specified date, may be subject to a
contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose
of allocating risk between Torchlight and the Agent, rather than establishing matters as facts. Accordingly, the representations and warranties
in the A&R Sales Agreement should not be relied on by any persons as characterizations of the actual state of facts about Torchlight
at the time they were made or otherwise. In addition, information concerning the subject matter of the representations and warranties
may change after the date of the A&R Sales Agreement, which subsequent information may or may not be fully reflected in Torchlight’s
public disclosures.
The Shares have been registered
under the Securities Act pursuant to the Registration Statement on Form S-3 (No. 333-256632) filed by Torchlight with the Securities
and Exchange Commission (the “SEC”) on May 28, 2021, and declared effective on June 14, 2021 (the “Registration
Statement”). A base prospectus relating to certain securities of Torchlight, including the Shares, was included with the Registration
Statement. Torchlight filed a prospectus supplement with the SEC relating to the offering of $100 million of the Shares on June 16, 2021
and an additional prospectus supplement with the SEC relating to the offering of $150 million of the Shares on June 21, 2021.
This Current Report on Form
8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of these
securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to the registration or qualification
under the securities law of any such state or jurisdiction.