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): January 3, 2019 (December 27, 2018)
DAYBREAK OIL AND GAS, INC.
(Exact Name of Registrant as Specified in its Charter)
| Washington | 000-50107 | 91-0626366 |
| (State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
| 1101 N. Argonne Road, Suite A 211 Spokane Valley, WA |
| 99212 |
| (Address of principal executive offices) |
| (Zip Code) |
Registrant's telephone number, including area code: (509) 232-7674
(Former Name or Former Address if Changed Since Last Report)
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:
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communication 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 | ¨ |
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
Termination of Indebtedness Owed to Lender
On December 27, 2018, Daybreak Oil and Gas, Inc. (OCT PINK:DBRM), a Washington corporation (“Daybreak” or the “Company”), entered into a Securities Purchase Agreement (the “Agreement”) with Maximilian Resources, LLC (“Maximilian”). Pursuant to the terms of the Agreement, Daybreak settled all of its outstanding indebtedness owed to Maximilian and repurchased interests in its Michigan prospects for a total payment of $700,000. The payment of $700,000 eliminated approximately $12.6 million in debt from the Company’s balance sheet and terminated and satisfied in full all outstanding obligations of the Company pursuant to (a) the Amended and Restated Loan and Security Agreement by and between the Company and Maximilian dated as of August 28, 2013, as amended (the “Loan Agreement”), and (b) a promissory note facility relating to the Company’s oil and gas exploration and development activities in Michigan, consisting of a secured promissory note by the Company in favor of Maximilian dated January 17, 2017 and amended on February 10, 2017 and a secured promissory note in favor of Maximilian dated May 4, 2017 (the “Promissory Note Facility”). The payment also included the repurchase by Daybreak from Maximilian of an undivided forty percent (40%) working interest in certain oil and gas leases in its Michigan prospects, and the assignment by Maximilian to Daybreak of its rights and obligations pursuant to an exploration agreement with respect to the Michigan prospects and a note receivable from Daybreak’s Michigan project partner that was held by Maximilian.
Further as a result of the Agreement, Daybreak now owns a 70% working interest in its Michigan project.
Production Payment Interest Purchase Agreement
The $700,000 paid to Maximilian pursuant to the Agreement was obtained from the proceeds of a Production Payment Interest Purchase Agreement dated as of December 27, 2018, entered into by and among the Company and a group of purchasers. Pursuant to the Production Payment Interest Purchase Agreement, the Company has already sold $700,000, and may sell in the aggregate up to $1.3 million, in production payment interests. The production payment interests entitle the purchasers to a percentage of the Company’s future production payments from wells drilled after the date of the agreement and before the Production Payment Target (as described below) is met. The Company shall pay fifty percent of its production payments from the relevant wells to the purchasers until each purchaser has received two times its purchase price (the “Production Payment Target”). Once the Company pays the purchasers amounts equal to the Production Payment Target, it shall thereafter pay eight percent of its production payments from the relevant wells to the purchasers. However, if the Production Payment Target is not met within the first three years, the Company shall pay seventy-five percent of its production payments from the relevant wells to the purchasers until the Production Payment Target is met.
The foregoing descriptions of the Agreement and the Production Payment Interest Purchase Agreement, and the transactions contemplated thereby are qualified in their entirety by the full text of the documents attached hereto as exhibits and incorporated by reference in this report.
Item 1.02
Termination of a Material Definitive Agreement
See discussion in Item 1.01, which is incorporated herein by reference.
Item 2.01
Completion of Acquisition or Disposition of Assets
See discussion in Item 1.01, which is incorporated herein by reference.
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Item 2.03
Creation of a Direct Financial Obligation
See discussion in Item 1.01, which is incorporated herein by reference.
Item 9.01
Financial Statements and Exhibits.
(d)
Exhibits.
Number
Exhibit
10.1*
10.2*
99.1*
*
Filed herewith.
[signature page follows]
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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.
DAYBREAK OIL AND GAS, INC.
| By: /s/ JAMES F. WESTMORELAND |
James F. Westmoreland, President and Chief Executive Officer
Date: January 3, 2019
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EXHIBIT INDEX
Number
Exhibit
10.1*
10.2*
99.1*
*
Filed herewith.
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EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of December 27 , 2018 (the “Effective Date”), is entered into by and between MAXIMILLIAN RESOURCES, LLC, a Delaware limited liability company (“Seller”), and DAYBREAK OIL AND GAS, INC., a Washington corporation (“Purchaser”).
WHEREAS, Seller and Purchaser are parties to that certain Amended and Restated Loan and Security Agreement, dated as of August 28, 2013, as amended by that certain First Amendment to Amended and Restated Loan and Security Agreement and Share Repurchase Agreement dated as of August 21, 2014, that certain Second Amendment to Amended and Restated Loan and Security Agreement and Warrant Amendment dated as of May 20, 2015, that certain Third Amendment to Amended and Restated Loan and Security Agreement and Second Warrant Amendment dated as of October 14, 2015, and that certain Fourth Amendment to Amended and Restated Loan and Security Agreement and Second Warrant Amendment dated as of October 31, 2016 (as the same has been and may hereafter be amended from time to time, herein the “Loan Agreement”), pursuant to which Seller has extended certain credit and other financial accommodations to the Purchaser, and pursuant to which Seller holds a certain secured promissory note, dated as of August 28, 2013, between Seller and Purchaser for an outstanding principal amount of
$9,063,144 (the “California Note”);
WHEREAS, Seller holds a secured promissory note dated January 17, 2017 and amended on February 10, 2017 and (b) a secured promissory note dated May 4, 2017, in an aggregate outstanding principal amount of $94,650 (collectively the “Michigan Note”);
WHEREAS, Seller holds an undivided forty percent (40%) Working Interest, as defined in Section 1 below, in certain initial oil and gas leases in the Prospects, as defined below (the “Lease Interests”), where Westside Exploration, LLC, a Michigan limited liability company ( “Westside”), is the operator, pursuant to a certain Exploration Agreement, dated December 1, 2016, among Seller, Westside and Purchaser (as amended, the “Exploration Agreement”); and
WHEREAS, Seller wishes to sell and assign to Purchaser all of its title and rights to and under the Loan Agreement, the California Note, the Michigan Note, the Lease Interests and the Exploration Agreement, and Purchaser wishes to purchase and assume from Seller, all of Seller’s title and rights to and under the Loan Agreement, the California Note, the Michigan Note, the Lease Interests and the Exploration Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Definitions. The capitalized terms within this Agreement not defined shall have the meanings as set forth in this Section 1.
“Belvidere Prospect” shall mean the land lying within the outline shown as Exhibit A-1 located within Montcalm County, Michigan.
“Bushnell Prospect” shall mean the land lying within the outline shown as Exhibit A-2 located within Montcalm County, Michigan.
“Leases” means the initial oil and gas leases in the Prospects.
“Notes” means, collectively, the California Note and the Michigan Note.
“Prospects” means, collectively, the Belvidere Prospect and the Bushnell Prospect.
“Securities” means, collectively, (i) the Notes, (ii) the Lease Interests, (iii) the Exploration Agreement, (iv) the Loan Agreement, (v) any equity interests that Seller may hold in Purchaser or Westside and (vi) all rights of Seller or any of its affiliates under any other agreement, amendment, certificate, indebtedness or other document related to the foregoing or related to the Purchaser to which Seller or any of its affiliates is a party.
“Working Interest” means that interest which bears a share of all costs and expenses proportionate to the interest owned, associated with the exploration, development and operation of the Leases associated therewith, that the owner of a Lease is required to bear and pay by reason of such ownership, expressed as a decimal or fraction.
2.
Purchase and Sale. At and upon the Closing, as defined below, Seller shall assign, transfer, grant, convey and deliver to Purchaser, and Purchaser shall accept and assume from Seller, all of Seller’s rights and obligations (the “Assigned Interests”) to and under the Securities in each case as of the Closing Date and including, without limitation, all rights, remedies, title and interest of Seller under the Securities and any other contractual obligations of Seller under the Securities. Such purchase and sale is made without recourse, representation or warranty of any kind except as expressly set forth herein.
3.
Assignment and Assumption. At and upon the Closing, (a) Purchaser shall accept such assignment and assumption and agrees to perform and discharge all duties and obligations of Seller under the Securities, which assumption shall not create any obligation in addition to or separate from the obligations of Seller already existing pursuant to the Securities, nor shall it enlarge or diminish such existing obligations, and (b) Seller shall relinquish all of its rights under the Securities with respect to the Assigned Interests. The assignment and assumption of the Assigned Interests pursuant to this Assignment Agreement shall not create or enlarge any rights of any third parties.
4.
Payment in Full and Termination of Indebtedness Agreements.
a.
Notwithstanding anything to the contrary set forth in this Agreement, upon the Closing, (a) all loans and obligations evidenced by the Loan Agreement, the California Note and the Michigan Note, and any other loan agreements with respect to indebtedness of Purchaser or Westside to Seller or any affiliate of Seller (collectively, the “Indebtedness Agreements”) shall be deemed paid in full and all other indebtedness of Purchaser or Westside under the Indebtedness Agreements shall be satisfied in full, (b) all the security interests, mortgages, liens, pledges, charges and other encumbrances in favor of the Seller and/or any affiliates of the Seller to secure the loans and obligations pursuant to the Indebtedness Agreements shall be automatically released with no further action on Seller’s part, (c) all guaranties supporting the Indebtedness Agreements shall be released with no further action on Seller’s part, (d) all of the other obligations of Purchaser or Westside under the Indebtedness Agreements shall be released with no further action on our part and (e) the Indebtedness Agreements shall be terminated, canceled and of no further force and effect.
b.
Upon the Closing, the Seller hereby agrees to promptly deliver to the Purchaser, in each case at the expense of the Purchaser, all promissory notes held by the Seller or any of its affiliates in connection with the Indebtedness Agreements.
c.
Upon the Closing, the Seller hereby authorizes the Purchaser to file on its behalf: (a) all Uniform Commercial Code releases and/or terminations and other terminations and releases in form acceptable for recording, terminating all of the Seller’s liens and security interests in any collateral secured pursuant to the Indebtedness Obligations; (b) all releases, discharges and satisfactions of all mortgages in favor of the Seller; and (c) all other instruments and documents evidencing the consummation of the payoff
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contemplated hereby and the aforementioned termination and release, in each case of (a), (b) or (c) above, in form reasonably acceptable to Seller.
d.
Upon the Closing, the Seller agrees to procure, deliver or execute and deliver to the Purchaser, from time to time upon written request made within 45 days of the Closing Date, all further releases, termination statements, certificates, instruments and documents, each in form and substance satisfactory to the Purchaser, and take any other actions, as may be reasonably requested by the Purchaser or which are required to evidence the consummation of the payoff contemplated hereby, in each case at the expense of the Purchaser (including attorneys' fees and expenses).
5.
Consideration. In consideration for Seller’s conveyance of the Securities and corresponding Assigned Interest, Purchaser shall pay to Seller an aggregate purchase price of SEVEN HUNDRED THOUSAND DOLLARS ($700,000) (the “Purchase Price”) on or prior to the Closing Date.
6.
Closing. Subject to the terms and conditions contained in this Agreement, the closing of the purchase, sale, assignment and assumption of the Securities and the Assigned Interests thereunder (the “Closing”) to be held on the date hereof (the “Closing Date”) will take place remotely by electronic exchange of counterpart signature pages and by Purchaser’s payment to Seller by wire transfer of immediately available funds in the amount of the Purchase Price in accordance with the wire instructions in Schedule A attached hereto, unless another date or place is agreed to in writing by the parties hereto. At the Closing, the obligation of Seller and Purchaser to consummate and close the transactions hereunder will be subject only to the delivery to Purchaser or Purchaser’s counsel of any original Notes in Seller’s possession or a lost certificate affidavit with respect to any Notes not in Seller’s possession.
7.
Closing Conditions.
a.
The obligation of Seller to sell, transfer and assign the Securities to Purchaser hereunder is subject to the satisfaction of the following conditions as of the Closing:
(i)
The representations and warranties of Purchaser in Section 8 hereof shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;
(ii)
Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date;
(iii)
Purchaser shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transactions contemplated herein;
(iv)
Seller shall have received this Agreement duly executed by Purchaser; and
(v)
Seller shall have received the Purchase Price from Purchaser.
b.
The obligation of Purchaser to purchase and assume the Securities from Seller is subject to the satisfaction of the following conditions as of the Closing:
(i)
The representations and warranties of Seller in Section 7 shall be true and correct on and as of the Closing Date with the same effect as though made at and as of such date;
(ii)
Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date;
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(iii)
Seller shall have obtained any and all consents, permits, approvals, registrations and waivers necessary for consummation of the transactions contemplated herein; and
(iv)
Purchaser shall have received this Agreement duly executed by Seller.
8.
Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser the following:
(a)
Seller is the sole legal and beneficial owner of Securities and the Assigned Interests thereunder;
(b)
The Securities and the Assigned Interests thereunder are free and clear of any lien other than Seller’s lien thereon;
(c)
Seller has all requisite power, authority and legal authorization to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby;
(d)
This Agreement has been duly executed and delivered by Seller and (assuming due authorization, execution and delivery by Purchaser) this Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms;
(e)
No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller; and
(f)
Seller (i) makes no other representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with the Securities and Assigned Interests or the execution, validity, enforceability, legality, genuineness, sufficiency or value of such documents and interests and (ii) makes no representation or warranty and assumes no responsibility with respect to the financial or other condition of Seller, Purchaser, Westside or the Prospects (collectively, the “Issuer Entities”) or the performance or observance by the Issuer Entities of its respective obligations under the Securities.
9.
Representation and Warranties of Purchaser. Purchaser hereby represents and warrants to Seller the following:
(a)
Purchaser has all requisite power, authority and legal authorization to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby;
(b)
This Agreement has been duly executed and delivered by Purchaser and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms;
(c)
To the extent the Securities consist of securities pursuant to the Securities Act of 1933, as amended (the “Securities Act”), Purchaser is acquiring such Securities solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Purchaser acknowledges that such Securities are not registered under the Securities Act, or any state securities laws, and that such Securities may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable;
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(d)
To the extent the Securities consist of securities pursuant to the Securities Act, Purchaser recognizes that the purchase of such Securities involves a high degree of risk and that Purchaser is able to bear the economic risk of an investment in such Securities. Purchaser has knowledge and experience in business and financial matters such that Purchaser is a sophisticated investor capable of evaluating the merits and risks of the prospective investment;
(e)
Purchaser hereby acknowledges that the Securities have not been registered or otherwise reviewed by the United States Securities and Exchange Commission (the “SEC”) nor any state regulatory authority;
(f)
Purchaser realizes that it may not be possible to sell or dispose of the any of the Securities, and therefore the Securities must not be purchased unless Purchaser has liquid assets sufficient to assure that such purchase will cause no undue financial difficulties and Purchaser can provide for current needs and personal contingencies;
(g)
Purchaser has not become aware of the offering of the Securities by any form of general solicitation or advertising, including, but not limited to advertisements, articles, notices or other communications published in any newspaper, magazine or other similar media or broadcast over television or radio or any seminar or meeting where those individuals that have attended have been invited by any such or similar means of general solicitation or advertising; and
(h)
No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.
10.
Survival and Indemnification. All representations, warranties and covenants contained in this Agreement and the indemnification contained in this Section shall survive (i) the Closing under this Agreement and (ii) the death or dissolution of Seller or Purchaser. Each party acknowledges the meaning and legal consequences of the representations, warranties and covenants in Sections 8 and 9 hereof, and that such party has relied upon the other party’s representations, warranties and covenants in entering into this Agreement. Each party hereby agrees to indemnify, defend and hold harmless the other party, and its officers, directors, employees, agents and controlling persons, from and against any and all losses, claims, damages, liabilities, expenses (including attorneys’ fees and disbursements), judgment or amounts paid in settlement of actions arising out of or resulting from the untruth of any such representation or the breach of any such warranty or covenant of such indemnifying party. Notwithstanding the foregoing, however, no representation, warranty, covenant or acknowledgment made herein by Purchaser shall in any manner be deemed to constitute a waiver of any rights granted to it under any applicable federal securities or state securities laws.
11.
Expenses; Recording. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses. Purchaser shall be solely responsible for all filings and recording of assignments and other documents which transfer any of the Securities to Purchaser and for all fees connected with such filing or recording. Upon request, Purchaser shall advise Seller of the pertinent recording data. Seller shall not be responsible for any loss to Purchaser because of Purchaser’s failure to file or record any such documents correctly or promptly.
12.
Further Assurances. During the 90 day period following the Closing, Seller and Purchaser shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.
13.
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth below
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(or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If to Seller:
c/o Platinum Partners
230 Park Avenue
10th Floor, Suite 135
New York, NY 10169
Facsimile:
(212) 582-2424
E-mail:
bweisenberg@platinumlp.com
Attention:
Brent Weisenberg, General Counsel
With copy to:
Otterbourg P.C.
230 Park Avenue
New York, NY 10169
Facsimile:
(212) 682-6104
E-mail:
pberg@otterbourg.com
Attention:
Philip C. Berg, Esq.
If to Purchaser:
Daybreak Oil and Gas, Inc.
1101 N. Argonne Road
Suite A 211
Spokane Valley, WA
E-mail:
jimw@daybreakoilandgas.com
Attention:
Jim Westmoreland
14.
Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.
Successor and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld or delayed.
16.
Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
17.
Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
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18.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
19.
Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
20.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed counterpart of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed counterpart of this Agreement.
21.
No Third Party Beneficiaries. This Agreement is for the exclusive benefit and convenience of the parties hereto. Nothing contained herein shall be construed as granting, vesting, creating or conferring any right of action or any other right or benefit upon any third party.
22.
Independent Representation. Purchaser and Seller acknowledge that they have each consulted an attorney concerning the terms of this Agreement or have elected not to do so but represent that they fully understand their rights and obligations hereunder. The parties further acknowledge that they have mutually negotiated the final terms and conditions of this Agreement, which shall be construed fairly and reasonably and not more strictly against one party than another.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement on the date first written above.
| SELLER: |
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| MAXIMILIAN RESOURCES, LLC |
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| By | /s/MELANIE CYGANOWSKI |
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| Name: Melanie Cyganowski |
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| Title: Receiver |
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| PURCHASER: |
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| DAYBREAK OIL AND GAS, INC. |
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| By | /s/JAMES F. WESTMORELAND |
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| Name: James F. Westmoreland |
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| Title: President and Chief Executive Officer |
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SCHEDULE A
Wire Instructions
Bank Name:
Bank ABA:
Bank Account Name:
Bank Account No:
Reference:
Currency:
SCHEDULE B
[Intentionally Omitted.]
EXHIBIT A-1
Belvidere Prospect
(See Attached)
EXHIBIT A-2
Bushnell Prospect
(See Attached)
EXHIBIT 10.2
PRODUCTION PAYMENT INTEREST PURCHASE AGREEMENT
This Production Payment Interest Purchase Agreement (this "Agreement") is entered into among Daybreak Oil and Gas, Inc., a Washington corporation (the "Company"), and the persons and entities (each individually a "Purchaser," and collectively, the "Purchasers") named on the Schedule of Purchasers attached hereto (the "Schedule of Purchasers").
WHEREAS, subject to the terms and conditions set forth herein, the Company wishes to issue and sell to the Purchasers, and the Purchasers wish to purchase from the Company, one or more interests in its production payments (as described herein) of the Company in exchange for the consideration (the "Consideration") set forth opposite each Purchaser's name on the Schedule of Purchasers.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.
Purchase and Sale of Production Payment Interest. In exchange for the Consideration paid by each Purchaser, the Company hereby sells and issues to such Purchaser, on the terms and conditions set forth in this Agreement, a percentage of the Company’s Subject Production Payments (such interest, a “Production Payment Interest”), calculated as follows:
1.1
Until such Purchaser shall have received payments totaling in the aggregate the Repayment Amount, such Purchaser’s Production Payment Interest shall be a percentage calculated by dividing such Purchaser’s Consideration by $1,300,000, and multiplying the quotient by 50%; provided, however, that if such Purchaser has not received payments totaling in the aggregate the Repayment Amount on or before the third anniversary of such Purchaser’s Effective Date, then from the third anniversary until such Purchaser shall have received payments totaling in the aggregate the Repayment Amount, such Purchaser’s Production Payment Interest shall be a percentage calculated by dividing such Purchaser’s Consideration by $1,300,000, and multiplying the quotient by 75%; and
1.2
Beginning when such Purchaser shall have received payments totaling in the aggregate the Repayment Amount, such Purchaser’s Production Payment Interest shall thereafter be a percentage calculated by dividing such Purchaser’s Consideration by $1,300,000, and multiplying the quotient by 8%.
1.3
Definitions. As used herein:
(a)
“Effective Date” shall mean, with respect to each Purchaser, the date reflected on the Schedule of Purchasers for such Purchaser, which Effective Date shall be designated by the Company but may not be more than 30 days after the date on which such Purchaser paid the Consideration.
(b)
“Repayment Amount” shall mean an amount equal to such Purchaser’s Consideration plus an additional amount equal to 100% of such Consideration.
(c)
“Subject Production Payment” shall mean the revenue actually received by the Company to the extent of its working interest, from the sale of oil, gas and other minerals produced from Subject Wells, minus lease operating expenses and all gross production taxes, severance taxes, pipeline regulating taxes and ad valorem taxes (including ad valorem taxes on the production payment) or other similar costs or taxes now or hereafter levied and paid with respect to such oil, gas and other minerals. Notwithstanding anything to the contrary contained herein, all payments pursuant to this Agreement shall be calculated only with respect to the Company’s working interest, as applicable.
(d)
“Subject Wells” shall mean wells drilled by the Company or its partners in California or Michigan during the time period beginning on the Effective Date and ending on the date that each Purchaser shall have received payments totaling in the aggregate its Repayment Amount.
2.
Timing of Production Payment Interest Payments. No less frequently than once per month, the Company shall calculate and pay any accrued unpaid Production Payment Interests to the Purchasers. Payments may be made in the form of a check mailed to the Purchaser at its address for notices set forth on such Purchaser’s signature page hereto, or other address as subsequently modified by written notice given in accordance with Section 8.5.
3.
Contractual Right. Each Purchaser’s rights pursuant to this Agreement and its Production Payment Interest are contractual in nature. This Agreement, and the Production Payment Interests, do not convey any interest in real property.
4.
Use of Proceeds. The Company shall use all proceeds from the sale of the Production Payment Interests to repay indebtedness and to drill new well(s) in California or Michigan.
5.
Closings. The closing of the sale of a Production Payment Interest in return for the Consideration paid by each Purchaser (each, a "Closing") will take place remotely via the exchange of documents and signatures with such Purchaser. At each Closing, the Purchaser will deliver the Consideration and a copy of this Agreement executed by the Purchaser to the Company and the Company will deliver to the Purchaser a copy of this Agreement executed by the Company. The Company may hold multiple Closings to accomplish the sales of Production Payment Interests to multiple Purchasers on the terms and conditions of this Agreement. The Schedule of Purchasers may be updated by the Company from time to time to reflect the Purchasers who are party to this Agreement.
6.
Representations and Warranties of the Company. In connection with the transactions contemplated by this Agreement, the Company hereby represents and warrants to the Purchasers as follows:
6.1
Due Organization; Qualification and Good Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Washington and has all requisite corporate power and authority to carry on its business as now conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify or to be in good standing would have a material adverse effect on the Company.
6.2
Authorization and Enforceability. All corporate action has been taken on the part of the Company and its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement. Except as may be limited by applicable bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement of creditors' rights, the Company has taken all corporate action required to make all of the obligations of the Company reflected in the provisions of this Agreement valid and enforceable in accordance with their terms.
7.
Representations and Warranties of the Purchasers. In connection with the transactions contemplated by this Agreement, each Purchaser, severally and not jointly, hereby represents and warrants to the Company as follows:
7.1
Authorization. Each Purchaser has full power and authority (and, if such Purchaser is an individual, the capacity) to enter into this Agreement and to perform all obligations required to be performed by it hereunder. This Agreement, when executed and delivered by each Purchaser, will constitute such Purchaser's valid and legally binding obligation, enforceable in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors' rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
7.2
Purchase Entirely for Own Account. Each Purchaser acknowledges that this Agreement is made with such Purchaser in reliance upon such Purchaser's representation to the Company, which such Purchaser confirms by executing this Agreement, that the Production Payment Interest will be acquired for such Purchaser's own account, not as a nominee or agent (unless otherwise specified on such Purchaser's signature page hereto), and not with a view to the resale or distribution of any part thereof, and that such Purchaser has no present intention of selling, granting any participation in, or otherwise transferring or distributing the same. By executing this Agreement, each Purchaser further represents that such Purchaser does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Production Payment Interest.
7.3
Disclosure of Information; Non-Reliance. Each Purchaser acknowledges that it has received all the information it considers necessary or appropriate to enable it to make an informed decision concerning a purchase of a Production Payment Interest. Each Purchaser further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Production Payment Interests. Each Purchaser confirms that the Company has not given any guarantee or representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of the Production Payment Interest. In deciding to purchase the Production Payment Interest, each Purchaser is not relying on the advice or recommendations of the Company and such Purchaser has made its own independent decision that the purchase of a Production Payment Interest is suitable and appropriate for such Purchaser.
7.4
Financial and Investment Experience. Each Purchaser acknowledges that it is able to fend for itself, can bear the economic risk of its purchase of a Production Payment Interest and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Production Payment Interest.
8.
Miscellaneous.
8.1
Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement will inure to the benefit of, and be binding upon, the respective successors and assigns of the parties; provided, however, that the Purchaser may not assign its obligations under this Agreement without the written consent of the Company, which may not be unreasonably withheld; and the Company may not assign its obligations under this Agreement unless the successor agrees in writing to be bound by the terms and conditions hereof. Further, the Company may not sell or assign any interest held by it in a Subject Well unless the purchasing party agrees to continue to pay the applicable Production Payment Interests with respect to
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such acquired interest. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8.2
Choice of Law. This Agreement, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, will be governed by and construed in accordance with the internal laws of the State of Washington, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Washington.
8.3
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. Counterparts may be delivered via facsimile, email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
8.4
Titles and Subtitles. The titles and subtitles used in this Agreement are included for convenience only and are not to be considered in construing or interpreting this Agreement.
8.5
Notices. All notices, payments and other communications given or made pursuant hereto will be in writing and will be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by email if the recipient affirmatively acknowledges receipt; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications will be sent to the respective parties at the addresses shown on the signature pages hereto (or to such email address, facsimile number or other address as subsequently modified by written notice given in accordance with this Section 8.5).
8.6
Expenses. Each party will pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement.
8.7
Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
8.8
Entire Agreement; Amendments and Waivers. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. The Company's agreements with each of the Purchasers are separate agreements, and the sales of the Production Payment Interests to each of the Purchasers are separate sales.
8.9
Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provisions will be excluded from this Agreement and the balance of the Agreement will be interpreted as if such provisions were so excluded and this Agreement will be enforceable in accordance with its terms.
8.10
Further Assurances. From time to time, the parties will execute and deliver such additional documents and will provide such additional information as may reasonably be required to carry out the terms of this Agreement and any agreements executed in connection herewith or therewith.
8.11
Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER REPRESENTS AND WARRANTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.
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| DAYBREAK OIL AND GAS, INC. By: /s/JAMES F. WESTMORELAND Name: James F. Westmoreland Title: President and Chief Executive Officer Address: 1101 N. Argonne Road Date: 12/27/18 |
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.
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_________________________________ By: _________________________ Name: Title: Address: Email Address: Date: |
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SCHEDULE OF PURCHASERS
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EXHIBIT 99.1
Daybreak Settles $12.6 Million Debt with its Primary Lender
SPOKANE VALLEY, Washington, January 3, 2019 -- Daybreak Oil and Gas, Inc. (OTC PINK: DBRM) (“Daybreak” or the “Company”), a Washington corporation, is pleased to announce that it finalized an agreement to settle all of its outstanding indebtedness under the existing credit facility with Maximilian Resources, LLC (“Maximilian”) through the payment of $700,000 on December 27, 2018 which will eliminate approximately $12.6 million in debt from its Balance Sheet. The Company also acquired an additional 40% working interest in Daybreak’s Michigan Project along with a note receivable from its Michigan Project partner that was held by Maximilian. Daybreak now owns a 70% working interest in its Michigan Project. Furthermore, all encumbrances have been removed from all of the Company’s leases in California and Michigan. The effects of this transaction will be reflected on the Company’s financial statements at February 28, 2019.
The $700,000 paid to Maximilian was obtained from private investors by selling a Production Payment from future wells to be drilled in California and Michigan. The Company intends to raise an additional $600,000 to drill new wells in California and Michigan. No additional debt was created from this Production Payment sale.
James F. Westmoreland, President, and Chief Executive Officer, stated, “This transaction is obviously a significant event for the Company and its Shareholders. By eliminating approximately $12.6 million in debt from our Balance Sheet, we have created an opportunity for new avenues of growth by the Company.”
Daybreak Oil and Gas, Inc. is an independent crude oil and natural gas company currently engaged in the exploration, development and production of onshore crude oil and natural gas in the United States. The Company is headquartered in Spokane Valley, Washington with an operations office in Friendswood, Texas. Daybreak owns a 3-D seismic survey that encompasses 20,000 acres over approximately 32 square miles with approximately 3,700 acres under lease in the San Joaquin Valley of California. The Company operates production from 20 oil wells in our East Slopes project area in Kern County, California. Daybreak now owns a 70% working interest in 1,400 acres in the Michigan Basin where we have two shallow crude oil prospects.
More information about Daybreak Oil and Gas, Inc. can be found at www.daybreakoilandgas.com.
Contact:
Ed Capko Telephone: 815-942-2581
Investor Relations Email: edc@daybreakoilandgas.com
Certain statements contained in this press release constitute “forward-looking statements” as defined by the Securities and Exchange Commission. Such statements can be identified by the use of forward-looking terminology such as “believe,” “expect,” “may,” “should,” “up to,” “approximately,” “likely,” or “anticipates” or the negative thereof. These forward-looking statements are based on our current expectations, assumptions, estimates and projections for the future of our business and our industry and are not statements of historical fact. Such forward-looking statements include, but are not limited to, statements about our expectations regarding our financing, our future operating results, our future capital expenditures, our expansion and growth of operations and our future investments in and acquisitions of crude oil and natural gas properties. We have based these forward-looking statements on assumptions and analyses made in light of our experience and our perception of historical trends, current conditions, and expected future developments. However, you should be aware that these forward-looking statements are only our predictions and we cannot guarantee any such outcomes. Future events and actual results may differ materially from the results set forth in or implied in the forward-looking statements. The following factors, among others, could cause actual results to differ from those set forth in the forward-looking statements: general economic and business conditions; exposure to market risks in our financial instruments; fluctuations in worldwide prices and demand for crude oil and natural gas; fluctuations in the levels of our crude oil and natural gas exploration and development activities; our ability to find, acquire and develop crude oil and natural gas properties, including the ability to develop the East Slopes Project and Michigan prospects; risks associated with crude oil and natural gas exploration and development activities; competition for raw materials and customers in the crude oil and natural gas industry; technological changes and developments in the crude oil and natural gas industry; legislative and regulatory uncertainties, including proposed changes to federal tax law and climate change legislation, and potential environmental liabilities; our ability to continue as a going concern; and our ability to secure additional capital to fund operations. Additional factors that may affect future results are contained in our filings with the Securities and Exchange Commission (“SEC”) and are available at the SEC’s web site http://www.sec.gov. Daybreak Oil and Gas, Inc. disclaims any obligation to update and revise statements contained in this press release based on new information or otherwise.