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) May 14, 2015

 

Treaty Energy Corporation

(Exact name of registrant as specified in its charter)

 

Delaware

000-28015

88-0884116

(State or other jurisdiction

of incorporation or organization)

(Commission

File Number)

(IRS Employer

Identification No.)

 

201 St. Charles Avenue, Suite 2513

New Orleans, LA 70170

(Address of principal executive offices)

 

504-754-6986

(Registrant’s telephone number, including area code)

 

____________________________________________

(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 (see General Instruction A.2. below):

 

¨

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

EXPLANATORY NOTE

 

Effective August 21, 2015, the issuer changed its name to Trimerica Energy Corporation (from Treaty Energy Corporation), and re-domiciled to Delaware (from Nevada). See Exhibit 3.1.

 

As discussed below, effective August 21, 2015, now as Trimerica Energy Corporation, a Delaware corporation (formerly named Trimerica Energy Holdings, Inc., the “Holding Company”), became the successor issuer to Trimerica Services, Inc., a Delaware corporation (formerly named Trimerica Energy Corporation, a Delaware corporation, the “Predecessor”).

 

ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

 

Holding Company Reorganization

 

On August 21, 2015, the Predecessor completed a corporate reorganization (the “Holding Company Reorganization”) pursuant to which the Predecessor became a direct, wholly-owned subsidiary of a new public holding company, the Holding Company. The Holding Company Reorganization was effected by a merger conducted pursuant to Section 251(g) of the Delaware General Corporation Law (the “DGCL”), which provides for the formation of a holding company without a vote of the stockholders of the constituent corporations.

 

In accordance with Section 251(g) of the DGCL, Trimerica Services, Inc. (“Merger Sub”), a Delaware corporation and an indirect, wholly owned subsidiary of the Predecessor, merged with and into the Predecessor, with the Predecessor surviving the merger as a direct, wholly owned subsidiary of the Holding Company (the “Merger”). The Merger was completed pursuant to the terms of an Agreement and Plan of Merger among the Predecessor, the Holding Company and Merger Sub, dated August 17, 2015 (the “Merger Agreement”).

 

As of the effective time of the Merger and in connection with the Holding Company Reorganization, all outstanding shares of common stock and preferred stock of the Predecessor were automatically converted into identical shares of common stock or preferred stock, as applicable, of the Holding Company on a one-for-one basis, and the Predecessor’s existing stockholders and other equity holders became stockholders and equity holders, as applicable, of the Holding Company in the same amounts and percentages as they were in the Predecessor prior to the Holding Company Reorganization.

 

In connection with the Holding Company Reorganization, the Predecessor changed its name from “Trimerica Energy Corporation” to “Trimerica Services, Inc.” and the Holding Company changed its name from “Trimerica Energy Holdings, Inc.” to “Trimerica Energy Corporation”

 

The executive officers and board of directors of the Holding Company are the same as those of the Predecessor in effect immediately prior to the Holding Company Reorganization.

 

For purposes of Rule 12g-3(a), the Holding Company is the successor issuer to the Predecessor. Accordingly, upon consummation of the Merger, the Holding Company’s common stock was deemed to be registered under Section 12(b) of the Securities Exchange Act of 1934, as amended, pursuant to Rule 12g-3(a) promulgated thereunder.

 

The foregoing description of the Merger Agreement set forth in this Item 1.01 is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached as Exhibit 2.1 hereto and incorporated by reference herein.

 

 
2
 

 

ITEM 5.02. DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS

 

See as well disclosure below outlined under “Other Events,” including appointment of a new President/CEO, David W. Shutte.

 

ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR

 

Prior to the date hereof, the Holding Company adopted a certificate of incorporation (the “Certificate”) and bylaws (the “Bylaws”) that are identical to the certificate of incorporation and bylaws of the Predecessor immediately prior to the Holding Company Reorganization, except for certain amendments that are permissible under Section 251(g)(4) of the DGCL. Subsequent to the Holding Company Reorganization and as contemplated in the Merger Agreement, the Holding Company filed an amendment to its Certificate to change its name to “Trimerica Energy Corporation” The Holding Company has the same authorized capital stock and the designations, rights, powers and preferences of such capital stock, and the qualifications, limitations and restrictions thereof are the same as that of the Predecessor’s capital stock immediately prior to the Holding Company Reorganization.

 

The Certificate and the Bylaws of the Holding Company are attached hereto as Exhibits 3.1 and 4.1, respectively, and are incorporated by reference into this Item 5.03.

 

ITEM 8.01. OTHER EVENTS

 

The common stock of the Holding Company trades on OTCMarkets under the symbol “TECO” under which the common stock of the Predecessor was previously listed and traded. As a result of the Holding Company Reorganization, the common stock of the Predecessor will no longer be publicly traded.

 

As disclosed in its March 16, 2015 Form 8-K: “…Because the addition of three Directors to the Board constitutes a ‘change of control,’ the applicable Section 14(f) of the Securities Exchange Act of 1934 (the “Exchange Act’) provides that, “…prior to the time any such person takes office as a director…the issuer shall file with the Commission, and transmit to all holders of record of securities of the issuer…” a Schedule 14-F Change of Control Information Statement. In turn, Rule 14f-1 provides that such Schedule shall be forwarded to all shareholders “…not less than 10 days prior to the date any such person[s] take office as a director...,” hereafter the “Effective Date.” Upon the Effective Date as defined…the prospective appointed Directors will be added to the Board…” After the Combined Schedule 14-F and 14-C (Notice in Lieu of Proxy) Information Statement was sent to shareholders and became effective, a Board meeting was convened via conference call on May 14, 2015. On that date, those new directors (Oral Glasco, John J. (“Sean”) Hickey and David Taylor) met for its first Board Meeting since the foregoing change of control, joining the two existing Board members (Christopher Tesarski and Andrew Kramer). All five Directors participated in such Board Meeting constituting, among other activities, an Organizational Meeting, engaging in a number of housekeeping details (selection of officers, auditor, bank, counsel, transfer agent, etc.) and received reports from its officers (Messrs. Tesarski and Kramer), counsel and management’s contracted outside accountant and outlining, among other matters, needed actions to affirmatively address litigation, funding and regulatory issues facing the Company.

 

 
3
 

 

On July 20, 2015, all five members of the Board met in New Orleans to continue to address actions needed to deal with litigation, funding and regulatory issues the Company is seeking to address. Consistent with securities requirements, the Board has instructed its officers and counsel to bring all SEC-mandated reports current, updating audits as appropriate and, more generally, adopting a more active disclosure policy, making filings on the SEC’s filing system as substantive events dictate, generally in lieu of social media. In that context, Forms 8-K, 10-Ks, 10-Qs will follow as events warrant. During that July 2015 Board Meeting and prior to the Delaware reorganization outlined above, the Board (i) reiterated the need to conclude its audit as soon as events warrant (including dealing with the gaps in disclosures new management inherited from prior management) and, following consultation with its securities counsel, (ii) concluded that prior management’s issuance of multiple series of preferred stock on “sweetheart” terms did not meet mandated state and corporate standards and (unless, upon subsequent justification, such preferred shares were issued for full and proper consideration) did not meet appropriate fiduciary standards and, accordingly, as permitted by applicable Nevada authority, a single class of preferred was authorized to be issued, each share with a single vote and convertible into one share of common stock --not the purported 10,000 to one basis as to such preferred which had not already been converted. Both actions were deemed to be in the best interests of the Company and the majority of its shareholders.

 

On August 17, the Board accepted the resignation as President and CEO of Christopher Tesarski (who will continue to serve as Chairman of the Company) and appointed unanimously David W. Shutte as its new President and CEO. Mr. Shutte has been associated with multiple companies over a 35 year career across a broad spectrum (CEO, COO, CFO and General Counsel) of business development, financing and legal roles in the energy industry, including five (5) successful energy company start-ups, two years with a wastewater treatment technology company and three (3) years heading up the energy practice of an investment banking firm. Mr. Shutte has a Bachelor’s degree in Business (major in Accounting) from the University of Michigan, (i) an MBA in Finance from the University of Detroit-Mercy and (iii) a law degree from Michigan State University. For more detail, see attached Press Release, Exhibit 99.1.

 

In the context of the above “Other Events,” the Company’s Board and the management have been developing an operational plan intended to reflect the new direction of the Company. Such full operational plan will be released near term to all shareholders in the form of a shareholder communication in a form to be determined.

 

 
4
 

 

ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS

 

(d) Exhibits

 

Exhibit

Number

 

Description

 

2.1

 

Agreement and Plan of Merger, dated August 17, 2015, by and among Trimerica Energy Corporation, Trimerica Energy Holdings, Inc. and Trimerica Services, Inc.

 

3.1

 

Certificate of Incorporation of each participating entity.

 

 

 

3.2

 

Amended and Restated Certificate of Incorporation of Trimerica Energy Corporation and of Trimerica Energy Holdings, Inc.

 

 

 

3.3

 

Bylaws of Trimerica Energy Corporation.

 

 

 

99.1

 

August 21, 2015 Press Release

 

 
5
 

 

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. 

 

Treaty Energy Corporation

(Registrant)

 

 

 

Date: August 21, 2015

By:

/s/ Andrew Kramer

 

Andrew Kramer

General Counsel and Secretary

 

 

 
6
 

 

INDEX TO EXHIBITS

 

Exhibit

Number

Description

2.1

Agreement and Plan of Merger, dated August 17, 2015, by and among Trimerica Energy Corporation, Trimerica Energy Holdings, Inc. and Trimerica Services, Inc.

3.1

Certificate of Incorporation of each participating entity.

3.2

Amended and Restated Certificate of Incorporation of Trimerica Energy Corporation and of Trimerica Energy Holdings, Inc.

3.3

Bylaws of Trimerica Energy Corporation.

99.1

August 21, 2015 Press Release

 

 

7


 

 



EXHIBIT 2.1

 

EXECUTION VERSION

 

AGREEMENT AND PLAN OF MERGER

 

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of August 17, 2015, is by and among Trimerica Energy Corporation, a Delaware corporation (“Trimerica Energy”), Trimerica Energy Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Trimerica Energy (“HoldCo”), and Trimerica Services, Inc., a Delaware corporation and a wholly-owned subsidiary of HoldCo (“Merger Sub”).

 

RECITALS

 

WHEREAS, the purpose of this Agreement, and the transactions contemplated by this Agreement, is to create a new holding company structure and HoldCo and Merger Sub have been formed for the purpose of effecting this new holding company structure;

 

WHEREAS, the respective Boards of Directors of Trimerica Energy, HoldCo and Merger Sub have each approved and adopted this Agreement and the transactions contemplated by this Agreement, in each case after making a determination that this Agreement and such transactions are advisable and in the best interests of such company and its stockholders;

 

WHEREAS, at the Effective Time (as defined below), pursuant to the transactions contemplated by this Agreement and on the terms and subject to the conditions set forth herein, Merger Sub will merge with and into Trimerica Energy in accordance with the Delaware General Corporation Law, as amended (the “DGCL”), whereupon the separate existence of Merger Sub shall cease and Trimerica Energy shall be the surviving entity; and

 

WHEREAS, for U.S. federal income tax purposes, it is the intention of the parties hereto that the Merger shall qualify as a tax-free reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations promulgated thereunder.

 

NOW, THEREFORE, in consideration of the premises and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

ARTICLE 1

 

MERGER

 

Section 1.1 Merger. Subject to the terms and conditions of this Agreement and in accordance with Section 251(g) of the DGCL, Merger Sub shall be merged with and into Trimerica Energy at the Effective Time. Following the Effective Time, the separate corporate existence of Merger Sub shall cease, and Trimerica Energy shall continue as the surviving entity (the “Surviving Entity”), becoming a direct wholly-owned subsidiary of HoldCo.

 

Section 1.2 Effective Time.

 

(a) Subject to the provisions of this Agreement, as soon as practicable following the satisfaction or waiver of the conditions set forth in Section 4.1, Trimerica Energy shall duly execute and file a Certificate of Merger (the “Certificate of Merger”) substantially in the form set forth as Exhibit A hereto with the Secretary of State of the State of Delaware (the “Delaware Secretary”) as required by the DGCL. The Merger shall become effective as provided in the Certificate of Merger (the “Effective Time”).

 

 
1
 

 

(b) The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, (i) right and title to all assets (including real estate and other property) owned by, and every contract right possessed by, Trimerica Energy and Merger Sub shall vest in the Surviving Entity, and (ii) all liabilities and obligations of Trimerica Energy and Merger Sub shall become the liabilities and obligations of the Surviving Entity. The vesting of such rights, title, liabilities and obligations in the Surviving Entity shall not be deemed to constitute an assignment or an undertaking or attempt to assign such rights, title, liabilities and obligations. Immediately following the Effective Time, Trimerica Energy agrees to change the name of Trimerica Energy to “Trimerica Services, Inc.,” and immediately thereafter, HoldCo agrees to change the name of HoldCo to “Trimerica Energy Corporation”

 

Section 1.3 Organizational Documents.

 

(a) HoldCo. In accordance with Section 251(g) of the DGCL, HoldCo agrees to file (and Trimerica Energy as the sole stockholder of HoldCo agrees to approve the filing of) an amended and restated certificate of incorporation of HoldCo (substantially in the form set forth as Exhibit B hereto, with the Delaware Secretary prior to the Effective Time to be effective prior to and as of the Effective Time (without, for the avoidance of doubt, giving effect to any of the amendments contemplated by Section 1.3(b) of this Agreement) containing provisions identical to those in the Amended and Restated Certificate of Incorporation of Trimerica Energy immediately prior to the Effective Time, except as otherwise permitted by Section 251(g) of the DGCL. HoldCo acknowledges that it has adopted bylaws substantially in the form set forth as Exhibit C hereto to be effective prior to and as of the Effective Time (the “HoldCo Bylaws”) containing provisions identical to those in the bylaws of Trimerica Energy (the “Trimerica Energy Bylaws”) in effect immediately prior to the Effective Time.

 

(b) Surviving Entity.

 

(i) At the Effective Time, the certificate of incorporation of Trimerica Energy in effect immediately prior to the Effective Time shall be and remain the certificate of incorporation of the Surviving Entity, until otherwise thereafter amended as provided therein or by the DGCL.

 

(ii) In accordance with Section 251(g) of the DGCL, at the Effective Time, the Trimerica Energy Bylaws shall be amended and restated in the form attached hereto as Exhibit D and, as so effectuated, shall continue in full force and effect as the bylaws of the Surviving Entity until otherwise thereafter amended as provided therein or by the DGCL.

 

Section 1.4 Directors and Officers of the Surviving Entity. From and after the Effective Time, the members of the board of directors of the Surviving Entity shall be the members of the board of directors of Merger Sub immediately prior to the Effective Time, and the officers of the Surviving Entity shall be the officers of Merger Sub immediately prior to the Effective Time, each to hold office as provided in the Certificate and Bylaws, until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal.

 

Section 1.5 Directors and Officers of HoldCo. From and after the Effective Time, the directors of HoldCo shall be the directors of Trimerica Energy immediately prior to the Effective Time, and the officers of HoldCo shall be certain officers of Trimerica Energy designated by the HoldCo Board, each to hold office as provided in the HoldCo Certificate of Incorporation and HoldCo Bylaws, until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal.

 

 
2
 

 

ARTICLE 2

 

CONVERSION OF SECURITIES; STOCK CERTIFICATES

 

Section 2.1 Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of Trimerica Energy, HoldCo, Merger Sub or any holder of any securities of the foregoing entities:

 

(a) Each share (or fraction of share, as applicable) of common stock, par value $0.001 per share, of Trimerica Energy (the “Trimerica Energy Common Stock”), outstanding or held in treasury immediately prior to the Effective Time, shall be converted into one (or equal fraction of one, as applicable) fully paid and nonassessable share of common stock, par value $0.001 per share, of HoldCo (the “HoldCo Common Stock”) having the same designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, as the corresponding share (or fraction of a share) of Trimerica Energy Common Stock being converted in the Merger. Each right to acquire Trimerica Energy Common Stock outstanding immediately prior to the Effective Time shall be converted into a right to acquire HoldCo Common Stock on the same terms and conditions as the right to acquire Trimerica Energy Common Stock being converted in the Merger;

 

(b) Each share (or fraction of share, as applicable) of preferred stock, par value $0.001 per share, of Trimerica Energy (the “Trimerica Energy Preferred Stock” and together with the Trimerica Energy Common Stock, the “Trimerica Energy Stock”), outstanding or held in treasury immediately prior to the Effective Time, shall be converted into one (or equal fraction of one, as applicable) fully paid and nonassessable share of preferred stock, par value $0.001 per share, of HoldCo (the “HoldCo Preferred Stock” and together with the HoldCo Common Stock, the “HoldCo Stock”) having the same designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, as the corresponding share (or fraction of a share) of Trimerica Energy Preferred Stock being converted in the Merger. Each right to acquire Trimerica Energy Preferred Stock outstanding immediately prior to the Effective Time shall be converted into a right to acquire HoldCo Preferred Stock on the same terms and conditions as the right to acquire Trimerica Energy Preferred Stock being converted in the Merger;

 

(c) Each share of HoldCo Common Stock issued and outstanding immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor; and

 

(d) Each share of Merger Sub common stock, par value $0.001 per share, held by HoldCo immediately prior to the Effective Time shall automatically convert into 1 share of common stock, par value $0.001 per share, of the Surviving Entity.

 

Section 2.2 Stock Certificates. Subject to Section 2.1, from and after the Effective Time, all of the outstanding certificates and book-entries which immediately prior to the Effective Time represented shares of Trimerica Energy Stock shall be deemed for all purposes to evidence ownership of, and to represent, shares of HoldCo Stock into which the shares of Trimerica Energy Stock formerly represented by such certificates and book-entries have been converted as provided in this Agreement with identical designations, rights, powers and preferences, and qualifications, limitations and restrictions. The registered owner on the books and records of HoldCo or its transfer agent of any outstanding stock certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to HoldCo or its transfer agent, be entitled to exercise any voting and other rights with respect to the applicable shares of HoldCo Stock into which the shares of Trimerica Energy Stock have been converted as provided in this Agreement.

 

 
3
 

 

ARTICLE 3

 

ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER

 

Section 3.1 Post-Effective Amendments. It is the intent of the parties that HoldCo, as of the Effective Time, be deemed a “successor issuer” for purposes of continuing offerings of Trimerica Energy under the Securities Act of 1933, as amended (the “Securities Act”). As soon as practicable following the Merger, HoldCo will file post-effective amendments to Trimerica Energy’s currently effective registration statements, adopting such statements as its own registration statements for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended, and setting forth any additional information necessary to reflect any material changes made in connection with, or resulting from, the succession or necessary to keep the registration statements from being misleading.

 

Section 3.2 Reservation of Shares. On or prior to the Effective Time, HoldCo will reserve sufficient shares of HoldCo Stock to provide for the issuance of HoldCo Stock to satisfy HoldCo’s obligations under this Agreement.

 

Section 3.3 Tax Characterization. Each party hereto shall use its reasonable best efforts to cause the Merger to constitute a tax-free reorganization within the meaning of Section 368 of the Code, and shall not take any actions reasonably likely to cause the Merger not to so qualify, or cause any such actions to be taken.

 

ARTICLE 4

 

CONDITIONS TO MERGER

 

Section 4.1 Conditions Precedent. The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver of the condition that no order, statute, rule, regulation, executive order, injunction, stay, decree, judgment or restraining order that is in effect shall have been enacted, entered, promulgated or enforced by any court or governmental or regulatory authority or instrumentality which prohibits or makes illegal the consummation of the Merger or the transactions contemplated hereby.

 

ARTICLE 5

 

TERMINATION AND AMENDMENT

 

Section 5.1 Termination. This Agreement may be terminated or the completion of the transactions contemplated herein, including without limitation the Merger, may be deferred at any time prior to the Effective Time by action of the Board of Directors of Trimerica Energy, HoldCo or Merger Sub. In the event of such termination, this Agreement shall become null and void and have no effect, without any liability or obligation on the part of Trimerica Energy, HoldCo or Merger Sub by reason of this Agreement.

 

Section 5.2 Amendment. This Agreement may be amended, modified or supplemented at any time by an instrument in writing signed on behalf of each of the parties.

 

 
4
 

 

ARTICLE 6

 

GENERAL PROVISIONS

 

Section 6.1 Governing Law. This Agreement shall be governed by and construed and enforced under the laws of the State of Delaware.

 

Section 6.2 Entire Agreement. This Agreement, including the documents and instruments referred to herein, constitutes the entire agreement and supersedes all other prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

 

Section 6.3 Further Assurances. From time to time, and when required by HoldCo, Trimerica Energy and/or Merger Sub shall execute and deliver, or cause to be executed and delivered, such deeds and other instruments, and Trimerica Energy and/or Merger Sub shall take or cause to be taken such further and other action, as shall be appropriate or necessary in order to vest or perfect in or to conform of record or otherwise in the Surviving Entity or HoldCo, as applicable the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority of HoldCo, Trimerica Energy and/or Merger Sub and otherwise to carry out the purposes of this Agreement, and the officers and directors of Trimerica Energy, HoldCo and Merger Sub are authorized fully in the name and on behalf of Trimerica Energy, HoldCo and Merger Sub, as applicable, or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments.

 

Section 6.4 Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means (including portable document format) shall be as effective as delivery of a manually executed counterpart of this Agreement.

 

Section 6.5 Severability. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.

 

[Signature page follows]

 

 
5
 

 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

 

 

Trimerica Energy Corporation,

a Delaware corporation

 

 

 

 

 

By:

/s/ Andrew Kramer

 

 

Name:

Andrew Kramer

 

 

Title:

Vice President, General Counsel and Secretary

 

 

 

 

 

Trimerica Energy Holdings, Inc.,

a Delaware corporation

 

 

  

 

 

By:

/s/ Andrew Kramer

 

 

Name:

Andrew Kramer

 

 

Title:

Vice President, General Counsel and Secretary

 

 

 

 

 

Trimerica Services, Inc.,

a Delaware corporation

 

 

 

 

 

By:

/s/ Andrew Kramer

 

 

Name:

Andrew Kramer

 

 

Title:

Vice President, General Counsel and Secretary

 

 

[Signature Page to Agreement and Plan of Merger]

 

 
6
 

 

CERTIFICATE OF MERGER

OF

TRIMERICA SERVICES INC.

WITH AND INTO

TRIMERICA ENERGY CORP.

 

Pursuant to Section 251 of the General Corporation Law of the State of Delaware (the “DGCL”), Trimerica Energy Corporation, a Delaware corporation (the “Corporation”), in connection with the merger of Trimerica Services Inc., a Delaware corporation (“Merger Sub”), with and into the Corporation (the “Merger”), hereby certifies as follows:

 

FIRST: The names and states of incorporation of the constituent corporations to the Merger are:

 

 

Name

State of Incorporation

 

Trimerica Energy Corporation

Delaware

 

Trimerica Services Inc.

Delaware

 

SECOND: An Agreement and Plan of Merger, dated as of August 17, 2015, by and among Trimerica Energy Holdings Inc., the Corporation and Merger Sub (the “Merger Agreement”), setting forth the terms and conditions of the Merger, has been approved, adopted, executed and acknowledged by each of the Corporation and Merger Sub in accordance with Section 251(g) of the DGCL.

 

THIRD: The name of the surviving corporation is Trimerica Energy Corporation (the “Surviving Corporation”).

 

FOURTH: The Amended and Restated Certificate of Incorporation of the Corporation as in effect immediately prior to the Merger shall be the certificate of incorporation of the Surviving Corporation with the addition of a new Article TWELVE which shall be added thereto, reading as follows:

 

“TWELVE: Other than the election or removal of directors of the Corporation, any act or transaction by or involving the Corporation that requires for its adoption under the General Corporation Law of the State of Delaware or this Amended and Restated Certificate of Incorporation the approval of the stockholders of the Corporation shall, pursuant to Section 251(g)(7)(i) of the General Corporation Law of the State of Delaware, require, in addition, the approval of the stockholders of Trimerica Energy Holdings Inc. (or any successor by merger), by the same vote as is required by the General Corporation Law of the State of Delaware and/or this Amended and Restated Certificate of Incorporation.”

 

FIFTH: The Merger shall become effective at 11:59 PM central time on August 17, 2015.

 

SIXTH: The executed Merger Agreement is on file at the office of the Surviving Corporation located at 201 St. Charles Avenue, Suite 2513, New Orleans, LA 70170. A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of either the Corporation or Merger Sub.

 

IN WITNESS WHEREOF, this Certificate of Merger has been executed on this August 17, 2015.

 

 

7


 



EXHIBIT 3.1

 

STATE of DELAWARE

CERTIFICATE of INCORPORATION

A STOCK CORPORATION

 

First:

The name of this Corporation is “Trimerica Energy Corporation”, hereby changing its name from “Treaty Energy Corporation,” while redomiciling from Nevada.

Second:

Its registered office is the State of Delaware is to be located at 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The registered agent in charge thereof is The Corporation Trust Company.

Third:

The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

Fourth:

(a) SHARES: The total number of shares of all classes which the Corporation is authorized to have issued and outstanding is Two Billion Three Hundred Million (2,300,000,000) shares, of which stock Two Billion Two Hundred Fifty Million (2,250,000,000) shares shall be common stock in the par value of $.001 each, amounting in aggregate to Two Million Two Hundred Fifty Thousand Dollars ($2,250,000), and of which Fifty Million (50,000,000) shares shall be preferred stock in the par value of $.001 each, amounting in the aggregate to Fifty Thousand Dollars ($50,000). The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

(b) The Board of Directors has provided for the issuance of Preferred Stock of the Corporation with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions set forth in Exhibit A hereto.

Fifth:

The name and mailing address of the incorporator are as follows:

 

 

 

Name: Andrew Kramer

 

Mailing Address 201 St. Charles Avenue, Suite 2513

New Orleans, LA, Zip Code 70170

 

I, The Undersigned, for the purpose of forming a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this

 

17th day of August, A.D. 2015

 

Trimerica Energy Holdings, Inc.

 

 

 

 

By:

/s/ Andrew Kramer

 

Andrew Kramer

 

Vice President, General Counsel and Secretary

 

 

 
1
 

 

Exhibit A to Articles of Incorporation

 

CERTIFICATE OF DESIGNATION OF CLASS A, SERIES 1 PREFERRED STOCK

 

The Corporation hereby establishes the following voting powers, designations, preferences, limitations, restrictions and relative rights of its Class A, Series 1 Preferred Stock, in accordance with Delaware law:

 

1.

The number of authorized shares of Class A, Series 1 Preferred Stock shall be 50,000,000 shares.

2.

Class A, Series 1 Preferred Stock shall have the following terms:

a.

The Par Value of each share of Class A, Series 1 Preferred Stock is $0.001.

b.

Each holder of Class A, Series 1 Preferred Stock shall have the right to one (1) vote per share, for each share owned on any matter put forth for a vote to shareholders.

c.

Each holder of Class A, Series 1 Preferred Stock may, at the election of the Board of the Company or the holder, be required to convert its shares of Class A, Series 1 Preferred Stock into shares of the Corporation's common stock at the rate of one (1) share of common stock for each share of Class A, Series 1 Preferred Stock; provided, however, a holder's ability to convert shares of Class A, Series 1 Preferred Stock into common stock is expressly conditioned upon the Corporation having sufficient authorized but unissued shares of common stock to fulfill such request. The Corporation shall have no obligation to deliver shares of common stock upon a purported conversion to a holder of Class A, Series 1 Preferred Stock should the Corporation have insufficient shares of authorized but unissued shares of common stock to fulfill such conversion request, and such conversion request shall be deemed null and void to the extent of such insufficiency.

d.

Upon the dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of Class A, Series 1 Preferred Stock shall participate in the payment or distribution made on the Company's common stock as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock.

e.

Each holder of Class A, Series 1 Preferred Stock shall be entitled to participate in any dividends declared by the Corporation's Board as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock, with any such declared dividend to subtract from any already accrued dividend.

f.

The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

 

 
2
 

 

STATE of DELAWARE

CERTIFICATE of INCORPORATION

A STOCK CORPORATION

 

First:

The name of this Corporation is Trimerica Energy Holdings, Inc.

Second:

Its registered office is the State of Delaware is to be located at 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The registered agent in charge thereof is The Corporation Trust Company.

Third:

The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

Fourth:

(a) SHARES: The total number of shares of all classes which the Corporation is authorized to have issued and outstanding is Two Billion Three Hundred Million (2,300,000,000) shares, of which stock Two Billion Two Hundred Fifty Million (2,250,000,000) shares shall be common stock in the par value of $.001 each, amounting in aggregate to Two Million Two Hundred Fifty Thousand Dollars ($2,250,000), and of which Fifty Million (50,000,000) shares shall be preferred stock in the par value of $.001 each, amounting in the aggregate to Fifty Thousand Dollars ($50,000). The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

(b) The Board of Directors has provided for the issuance of Preferred Stock of the Corporation with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions set forth in Exhibit A hereto.

Fifth:

The name and mailing address of the incorporator are as follows:

 

 

 

Name: Treaty Energy Corporation

Mailing Address 201 St. Charles Avenue, Suite 2513

New Orleans, LA, Zip Code 70170

 

I, The Undersigned, for the purpose of forming a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this

 

17th day of August, A.D. 2015

       
By: /s/ Andrew Kramer

 

 

Name:

Andrew Kramer

 

 

Title:

Vice President, General Counsel of Treaty Energy Corporation,
as the incorporator

 

 

 
3
 

 

Exhibit A to Articles of Incorporation

 

CERTIFICATE OF DESIGNATION OF CLASS A, SERIES 1 PREFERRED STOCK

 

The Corporation hereby establishes the following voting powers, designations, preferences, limitations, restrictions and relative rights of its Class A, Series 1 Preferred Stock, in accordance with Delaware law:

 

1.

The number of authorized shares of Class A, Series 1 Preferred Stock shall be 50,000,000 shares.

2.

Class A, Series 1 Preferred Stock shall have the following terms:

a.

The Par Value of each share of Class A, Series 1 Preferred Stock is $0.001.

b.

Each holder of Class A, Series 1 Preferred Stock shall have the right to one (1) vote per share, for each share owned on any matter put forth for a vote to shareholders.

c.

Each holder of Class A, Series 1 Preferred Stock may, at the election of the Board of the Company or the holder, be required to convert its shares of Class A, Series 1 Preferred Stock into shares of the Corporation's common stock at the rate of one (1) share of common stock for each share of Class A, Series 1 Preferred Stock; provided, however, a holder's ability to convert shares of Class A, Series 1 Preferred Stock into common stock is expressly conditioned upon the Corporation having sufficient authorized but unissued shares of common stock to fulfill such request. The Corporation shall have no obligation to deliver shares of common stock upon a purported conversion to a holder of Class A, Series 1 Preferred Stock should the Corporation have insufficient shares of authorized but unissued shares of common stock to fulfill such conversion request, and such conversion request shall be deemed null and void to the extent of such insufficiency.

d.

Upon the dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of Class A, Series 1 Preferred Stock shall participate in the payment or distribution made on the Company's common stock as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock.

e.

Each holder of Class A, Series 1 Preferred Stock shall be entitled to participate in any dividends declared by the Corporation's Board as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock, with any such declared dividend to subtract from any already accrued dividend.

f.

The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

 

 
4
 

 

STATE of DELAWARE

CERTIFICATE of INCORPORATION

A STOCK CORPORATION

 

First:

The name of this Corporation is Trimerica Services, Inc.

Second:

Its registered office is the State of Delaware is to be located at 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The registered agent in charge thereof is The Corporation Trust Company.

Third:

The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

Fourth:

(a) SHARES: The total number of shares of all classes which the Corporation is authorized to have issued and outstanding is Two Billion Three Hundred Million (2,300,000,000) shares, of which stock Two Billion Two Hundred Fifty Million (2,250,000,000) shares shall be common stock in the par value of $.001 each, amounting in aggregate to Two Million Two Hundred Fifty Thousand Dollars ($2,250,000), and of which Fifty Million (50,000,000) shares shall be preferred stock in the par value of $.001 each, amounting in the aggregate to Fifty Thousand Dollars ($50,000). The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

(b) The Board of Directors has provided for the issuance of Preferred Stock of the Corporation with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions set forth in Exhibit A hereto.

Fifth:

The name and mailing address of the incorporator are as follows:

 

Name: Trimerica Energy Holdings, Inc.

Mailing Address 201 St. Charles Avenue, Suite 2513

New Orleans, LA, Zip Code 70170

 

I, The Undersigned, for the purpose of forming a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this

 

17th day of August, A.D. 2015

       
By: /s/ Andrew Kramer

 

 

Name:

Andrew Kramer

 

 

Title:

Vice President, General Counsel of Trimerica Energy Holdings, Inc.,
as the incorporator

 

 

 
5
 

 

Exhibit A to Articles of Incorporation

 

CERTIFICATE OF DESIGNATION OF CLASS A, SERIES 1 PREFERRED STOCK

 

The Corporation hereby establishes the following voting powers, designations, preferences, limitations, restrictions and relative rights of its Class A, Series 1 Preferred Stock, in accordance with Delaware law:

 

1.

The number of authorized shares of Class A, Series 1 Preferred Stock shall be 50,000,000 shares.

2.

Class A, Series 1 Preferred Stock shall have the following terms:

a.

The Par Value of each share of Class A, Series 1 Preferred Stock is $0.001.

b.

Each holder of Class A, Series 1 Preferred Stock shall have the right to one (1) vote per share, for each share owned on any matter put forth for a vote to shareholders.

c.

Each holder of Class A, Series 1 Preferred Stock may, at the election of the Board of the Company or the holder, be required to convert its shares of Class A, Series 1 Preferred Stock into shares of the Corporation's common stock at the rate of one (1) share of common stock for each share of Class A, Series 1 Preferred Stock; provided, however, a holder's ability to convert shares of Class A, Series 1 Preferred Stock into common stock is expressly conditioned upon the Corporation having sufficient authorized but unissued shares of common stock to fulfill such request. The Corporation shall have no obligation to deliver shares of common stock upon a purported conversion to a holder of Class A, Series 1 Preferred Stock should the Corporation have insufficient shares of authorized but unissued shares of common stock to fulfill such conversion request, and such conversion request shall be deemed null and void to the extent of such insufficiency.

d.

Upon the dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of Class A, Series 1 Preferred Stock shall participate in the payment or distribution made on the Company's common stock as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock.

e.

Each holder of Class A, Series 1 Preferred Stock shall be entitled to participate in any dividends declared by the Corporation's Board as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock, with any such declared dividend to subtract from any already accrued dividend.

f.

The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

 

 

6


 



EXHIBIT 3.2

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

STATE of DELAWARE

 

First:

The name of this Corporation is Trimerica Energy Holdings Corporation, hereby changing its name to “Trimerica Energy Corporation,” incident to, and immediately following the August 17, 2015 AGREEMENT AND PLAN OF MERGER by and among Trimerica Energy Corp., a Delaware corporation (“Trimerica Energy”), Trimerica Energy Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Trimerica Energy (“HoldCo”), and Trimerica Services, Inc., a Delaware corporation and a wholly-owned subsidiary of HoldCo.

 

Second:

Its registered office is the State of Delaware is to be located at 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The registered agent in charge thereof is The Corporation Trust Company.

 

Third:

The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

 

Fourth:

(a) SHARES: The total number of shares of all classes which the Corporation is authorized to have issued and outstanding is Two Billion Three Hundred Million (2,300,000,000) shares, of which stock Two Billion Two Hundred Fifty Million (2,250,000,000) shares shall be common stock in the par value of $.001 each, amounting in aggregate to Two Million Two Hundred Fifty Thousand Dollars ($2,250,000), and of which Fifty Million (50,000,000) shares shall be preferred stock in the par value of $.001 each, amounting in the aggregate to Fifty Thousand Dollars ($50,000). The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

 

 

 

(b) The Board of Directors has provided for the issuance of Preferred Stock of the Corporation with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions set forth in Exhibit A hereto.

 

I, the Undersigned, for the purpose of changing the articles of incorporation of a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this 17th day of August, A.D. 2015

 

 

 

By:

/s/ Andrew Kramer

Name:

Andrew Kramer

 

Title:

Vice President, General Counsel and Secretary

 

 

 
1
 

 

Exhibit A to Articles of Incorporation

 

CERTIFICATE OF DESIGNATION OF CLASS A, SERIES 1 PREFERRED STOCK

 

The Corporation hereby establishes the following voting powers, designations, preferences, limitations, restrictions and relative rights of its Class A, Series 1 Preferred Stock, in accordance with Delaware law:

 

1.

The number of authorized shares of Class A, Series 1 Preferred Stock shall be 50,000,000 shares.

2.

Class A, Series 1 Preferred Stock shall have the following terms:

 

a.

The Par Value of each share of Class A, Series 1 Preferred Stock is $0.001.

b.

Each holder of Class A, Series 1 Preferred Stock shall have the right to one (1) vote per share, for each share owned on any matter put forth for a vote to shareholders.

c.

Each holder of Class A, Series 1 Preferred Stock may, at the election of the Board of the Company or the holder, be required to convert its shares of Class A, Series 1 Preferred Stock into shares of the Corporation's common stock at the rate of one (1) share of common stock for each share of Class A, Series 1 Preferred Stock; provided, however, a holder's ability to convert shares of Class A, Series 1 Preferred Stock into common stock is expressly conditioned upon the Corporation having sufficient authorized but unissued shares of common stock to fulfill such request. The Corporation shall have no obligation to deliver shares of common stock upon a purported conversion to a holder of Class A, Series 1 Preferred Stock should the Corporation have insufficient shares of authorized but unissued shares of common stock to fulfill such conversion request, and such conversion request shall be deemed null and void to the extent of such insufficiency.

d.

Upon the dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of Class A, Series 1 Preferred Stock shall participate in the payment or distribution made on the Company's common stock as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock.

e.

Each holder of Class A, Series 1 Preferred Stock shall be entitled to participate in any dividends declared by the Corporation's Board as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock, with any such declared dividend to subtract from any already accrued dividend.

f.

The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

 

 
2
 

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

STATE of DELAWARE

 

First:

The name of this Corporation is Trimerica Energy Corporation, hereby changing its name to “Trimerica Services, Inc.,” incident to, and immediately following the August 17, 2015 AGREEMENT AND PLAN OF MERGER by and among Trimerica Energy Corp., a Delaware corporation (“Trimerica Energy”), Trimerica Energy Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of Trimerica Energy (“HoldCo”), and Trimerica Services, Inc., a Delaware corporation and a wholly-owned subsidiary of HoldCo.

Second:

Its registered office is the State of Delaware is to be located at 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The registered agent in charge thereof is The Corporation Trust Company.

Third:

The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

Fourth:

(a) SHARES: The total number of shares of all classes which the Corporation is authorized to have issued and outstanding is Two Billion Three Hundred Million (2,300,000,000) shares, of which stock Two Billion Two Hundred Fifty Million (2,250,000,000) shares shall be common stock in the par value of $.001 each, amounting in aggregate to Two Million Two Hundred Fifty Thousand Dollars ($2,250,000), and of which Fifty Million (50,000,000) shares shall be preferred stock in the par value of $.001 each, amounting in the aggregate to Fifty Thousand Dollars ($50,000). The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

 

 

 

(b) The Board of Directors has provided for the issuance of Preferred Stock of the Corporation with the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions set forth in Exhibit A hereto.

 

I, the Undersigned, for the purpose of changing the articles of incorporation of a corporation under the laws of the State of Delaware, do make, file and record this Certificate, and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this 17th day of August, A.D. 2015.

 

 

By:

/s/ Andrew Kramer

Name:

Andrew Kramer

 

Title:

Vice President, General Counsel and Secretary

 

 

 
3
 

 

Exhibit A to Articles of Incorporation

 

CERTIFICATE OF DESIGNATION OF CLASS A, SERIES 1 PREFERRED STOCK

 

The Corporation hereby establishes the following voting powers, designations, preferences, limitations, restrictions and relative rights of its Class A, Series 1 Preferred Stock, in accordance with Delaware law:

 

1.

The number of authorized shares of Class A, Series 1 Preferred Stock shall be 50,000,000 shares.

2.

Class A, Series 1 Preferred Stock shall have the following terms:

1.

The number of authorized shares of Class A, Series 1 Preferred Stock shall be 50,000,000 shares. 2. Class A, Series 1 Preferred Stock shall have the following terms: a. The Par Value of each share of Class A, Series 1 Preferred Stock is $0.001.

b.

Each holder of Class A, Series 1 Preferred Stock shall have the right to one (1) vote per share, for each share owned on any matter put forth for a vote to shareholders.

c.

Each holder of Class A, Series 1 Preferred Stock may, at the election of the Board of the Company or the holder, be required to convert its shares of Class A, Series 1 Preferred Stock into shares of the Corporation's common stock at the rate of one (1) share of common stock for each share of Class A, Series 1 Preferred Stock; provided, however, a holder's ability to convert shares of Class A, Series 1 Preferred Stock into common stock is expressly conditioned upon the Corporation having sufficient authorized but unissued shares of common stock to fulfill such request. The Corporation shall have no obligation to deliver shares of common stock upon a purported conversion to a holder of Class A, Series 1 Preferred Stock should the Corporation have insufficient shares of authorized but unissued shares of common stock to fulfill such conversion request, and such conversion request shall be deemed null and void to the extent of such insufficiency.

d.

Upon the dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of Class A, Series 1 Preferred Stock shall participate in the payment or distribution made on the Company's common stock as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock.

e.

Each holder of Class A, Series 1 Preferred Stock shall be entitled to participate in any dividends declared by the Corporation's Board as if such shares of Class A, Series 1 Preferred Stock had been converted into shares of common stock, with any such declared dividend to subtract from any already accrued dividend.

f.

The board of directors is authorized, subject to limitations prescribed by law, to provide for the issuance of preferred stock in series, and to establish from time to time the number of shares to be included in each such series and the qualifications, limitations and restrictions thereof. The board of directors shall have the authority to determine by resolution all other rights.

 

 

4




EXHIBIT 3.3

 

BY-LAWS 

OF 

Trimerica Energy Corporation

 

BY-LAWS

of

Trimerica Energy Holdings, Inc.,

a Delaware Corporation

 

ARTICLE I

 

The initial principal office of the Corporation shall be in 201 St. Charles Avenue, Suite 2513, New Orleans, LA 70170. The Corporation may have offices at such other places within or without the State of Delaware as the Board of Directors may from time to time establish.

 

ARTICLE II

 

CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken in connection with corporate action, by any provisions of the statutes of the Certificate of Incorporation, the meeting and vote of stockholders may be dispensed with, if all the stockholders who should have been entitled to vote upon the action if such meeting were held, shall consent in writing to such corporate action being taken.

 

ARTICLE III

Board of Directors

 

Section 1. GENERAL POWERS. The business of the Corporation shall be managed by the Board of Directors, except as otherwise provided by statute or by the Certificate of Incorporation. Except as otherwise provided, the Board of Directors may shall be empowered to the full extent afforded by Delaware law.

 

Section 2. NUMBER AND QUALIFICATIONS. The Board of Directors shall consist of up to five (5) members. Except as provided in the Certificate of Incorporation, this number can be increased only by the vote or written consent of the holders of fifty (50) percent of the stock of the Corporation outstanding and entitled to vote. The current number of Directors shall be determined by the Board of Directors at its annual meeting. No Director need be a stockholder.

 

Section 3. ELECTION AND TERM OF OFFICE. The Directors shall be elected annually by the stockholders, and shall hold office until their successors are respectively elected and qualified.

 

Election of Directors need not be by ballot.

 

Section 4. COMPENSATION. The members of the Board of Directors shall be paid a fee of $10.00 for attendance at all annual, regular, special and adjourned meetings of the Board. No such fee shall be paid any director if absent. Any director of the Corporation may also serve the Corporation in any other capacity, and receive compensation therefor in any form. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

Section 5. REMOVAL AND RESIGNATIONS. The stockholders may, at any meeting called for the purpose, by vote of two-thirds of the capital stock issued and outstanding, remove any directors from office, with or without cause; provided however, that no director shall be removed in case the vote of a sufficient number of shares are cast against his removal, which if cumulatively voted at any election of directors would be sufficient to elect him, if cumulative voting is allowed by the Articles of Incorporation.

 

The stockholders may, at any meeting, by vote of a majority of such stock represented at such meeting accept the resignation of any director.

 

 
1
 

 

Section 6. VACANCIES. Any vacancy occurring in the office of director may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, unless sooner displaced.

 

When one or more directors resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have powers to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations become effective.

 

ARTICLE IV

Meetings of Board of Directors

 

Section 1. REGULAR MEETINGS. A regular meeting of the Board of Directors may be held without call or formal notice immediately after and at the same place as the annual meeting of the stockholders or any special meeting of the stockholders at such places within or without the State of Delaware and at such times as the Board may by vote from time to time determine.

 

Section 2. SPECIAL MEETINGS. Special meetings of the Board of Directors may be held at any place whether within or without the State of Delaware at any time when called by the President, Treasurer,

 

Secretary or two or more directors. Notice of the time and place thereof shall be given to each director at least three (3) days before the meeting if by mail or at least twenty-four hours if in person or by telephone or telegraph. A waiver of such notice in writing, signed by the person or persons entitled to said notice, either before or after the time stated therein, shall be deemed equivalent to such notice. Notice of any adjourned meeting of the Board of Directors need not be given.

 

Section 3. QUORUM. The presence, at any meeting, of one-third of the total number of directors, but in no case less than two (2) directors, shall be necessary and sufficient to constitute a quorum for the transaction of business except as otherwise required by statute or by the Certificate of Incorporation, the act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present at the time and place of any meeting may adjourn such meeting from time to time until a quorum be present.

 

Section 4.a. CONSENT OF DIRECTORS IN LIEU OF MEETING. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of

 

Directors or any committee thereof may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board or committee, and such written consent is filed within the minutes of the Corporation.

 

Section 4.b. The Board of Directors may hold regular or special meetings by telephone conference call, provided that any resolutions adopted shall be recorded in writing within 3 days of such telephone conference, and written ratification of such resolutions by the directors shall be provided within 10 days thereafter.

 

 
2
 

 

ARTICLE V

Committees of Board of Directors

 

The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of two or more of the directors of the Corporation, which, to the extent provided in the resolution, shall have, and may exercise the powers of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the

 

Corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.

 

The committees of the Board of Directors shall keep regular minutes of their proceedings and report the same to the Board of Directors when required.

 

ARTICLE VI

Officers

 

Section 1. NUMBER. The Corporation shall have a President, one or more Vice Presidents, a Secretary and a Treasurer, and such other officers, agents and factors as may be deemed necessary. One person may hold any two offices except the offices of President and Vice President and the offices of President and Secretary.

 

Section 2. ELECTION, TERM OF OFFICE AND QUALIFICATION. The officers specifically designated in Section 1 of this Article VI shall be chosen annually by the Board of Directors and shall hold office until their successors are chosen and qualified. No officer need be a director.

 

Section 3. SUBORDINATE OFFICERS. The Board of Directors from time to time may appoint other officers and agents, including one or more Assistant Secretaries and one or more Assistant Treasurers, each of whom shall hold office for such period, have such authority and perform such duties as are provided in these By-Laws or as the Board of Directors from time to time may determine. The Board of Directors may delegate to any office the power to appoint any such subordinate officers, agents and factors and to prescribe their respective authorities and duties.

 

Section 4. REMOVALS AND RESIGNATIONS. The Board of Directors may at any meeting called for the purpose, by vote of a majority of their entire number, remove from office any officer or agent of the Corporation, or any member of any committee appointed by the Board of Directors.

 

The Board of Directors may at any meeting, by vote of a majority of the directors present at such meeting, accept the resignation of any officer of the Corporation.

 

Section 5. VACANCIES. Any vacancy occurring in the office of President, Vice President, Secretary, Treasurer or any other office by death, resignation, removal or otherwise shall be filled for the expired portion of the term in the manner prescribed by these By-Laws for the regular election or appointment to such office.

 

 
3
 

 

Section 6. THE PRESIDENT. The President shall be the chief executive officer of the Corporation and, subject to the direction and under the supervision of the Board of Directors, shall have general charge of the business, affairs and property of the Corporation, and control over its officers, agents and employees. The President shall preside at all meetings of the stockholders and of the Board of Directors at which he is present. The President shall do and perform such other duties and may exercise such other powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.

 

Section 7. THE VICE PRESIDENT. At the request of the President or in the event of his absence or disability, the Vice President, or in case there shall be more than one Vice President, the Vice President designated by the President, or in the absence of such designation, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting, shall have all the powers of, and be subject to all the restrictions upon, the President. Any Vice President shall perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors, or the President.

 

Section 8. THE SECRETARY. The Secretary shall:

 

a. Record all the proceedings of the meetings of the Corporation and directors in a book to be kept for that purpose;

 

b. Have charge of the stock ledger (which may, however, be kept by any transfer agent or agents of the Corporation under the direction of the Secretary), an original or duplicate of which shall be kept at the principal office or place of business of the Corporation in the State of Delaware;

 

c. Prepare and make, at least ten (10) days before every ,election of directors, a complete list of the stockholders entitled to vote at said election, arranged in alphabetical order;

 

d. See that all notices are duly given in accordance with the provisions of these By-Laws or as required by statute;

 

e. Be custodian of the records of the Corporation and the Board of Directors, and of the seal of the Corporation, and see that the seal is affixed to all stock certificates prior to their issuance and to all documents, the execution of which on behalf of the Corporation under its seal have been duly authorized;

 

f. See that all books, reports, statements, certificates and the other documents and records required by law to be kept or filed are properly kept or filed; and

 

g. In general, perform all duties and have all powers incident to the office of Secretary and perform such other duties and have such powers as from time to time may be assigned to him by these By-Laws or by the Board of Directors or the President.

 

 
4
 

 

Section 9. THE TREASURER. The Treasurer shall:

 

a. Have supervision over the funds, securities, receipts, and disbursements of the Corporation;

 

b. Cause all monies and other valuable effects of the Corporation to be deposited in its name and to its credit, in such depositories as shall be selected by the Board of Directors or pursuant to authority conferred by the Board of Directors.

 

c. Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositories of the Corporation, when such disbursements shall have been duly authorized;

 

d. Cause to be taken and preserved proper vouchers for all monies disbursed;

 

e. Cause to be kept at the principal office of the Corporation correct books of account of all its business and transactions;

 

f. Render to the President or the Board of Directors, whenever requested, an account of the financial condition of the Corporation and of his transactions as Treasurer;

 

g. Be empowered to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; and

 

h. In general, perform all duties and have all powers incident to the office of Treasurer and perform such other duties and have such power as from time to time may be assigned to him by these By-Laws or by the Board of Directors or President.

 

Section 10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant Secretaries and Assistant Treasurers shall have such duties as from time to time may be assigned to them by the Board of Directors or the President.

 

Section 11. SALARIES. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of section 3 of this Article VI. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation.

 

Section 12. SURETY BOND. The Board of Directors may secure the fidelity of any or all of the officers of the Corporation by bond or otherwise.

 

 
5
 

 

ARTICLE VII

Execution of Instruments

 

Section 1. EXECUTION OF INSTRUMENTS GENERALLY. All documents or writings of any nature shall be signed, executed, verified, acknowledged and delivered by such officer or officers or such agent of the Corporation and in such manner as the Board of Directors from time to time may determine.

 

Section 2. CHECKS, DRAFTS, ETC. All notes, drafts, acceptances, checks, endorsements, and all evidence of indebtedness of the corporation whatsoever, shall be signed by such officer or officers or such agent or agents of the Corporation and in such manner as the Board of Directors from time to time may determine. Endorsements for deposit to the credit of the Corporation in any of its-duly authorized depositories shall be made in such manner as the Board of Directors from time to time may determine.

 

Section 3. PROXIES. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the President or Vice President and the Secretary or Assistant Secretary of the Corporation or by any other person or persons duly authorized by the Board of Directors.

 

ARTICLE VIII

 

Section 1. CERTIFICATES OF STOCK. Every holder of stock in the Corporation shall be entitled to have a certificate, signed in the name of the Corporation by the Chairman or Vice President of the Board of Directors, the President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation; provided, however, that where such certificate is signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such Chairman of the Board of Directors, President, Vice President, Treasurer, Assistant Treasurer, Secretary, or Assistant Secretary may be facsimile. In case any officer or officers who shall have signed, or whole facsimile signature or signatures shall have been used thereon, any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be such officer or officers of the Corporation, and any such delivery shall be regarded as an adoption by the Corporation of such certificate or certificates.

 

Certificates of stock shall be in such form as shall, in conformity to law, be prescribed from time to time by the Board of Directors.

 

Section 2. TRANSFER OF STOCK. Shares of stock of the Corporation shall only be transferred on the books of the Corporation by the holder of record thereof or by his attorney duly authorized in writing, upon surrender to the Corporation of the certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer tax stamps. In that event, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction on its books.

 

 
6
 

 

Section 3. RIGHTS OF CORPORATION WITH RESPECT TO REGISTERED OWNERS. Prior to the surrender to the Corporation of the certificates for shares of stock with a request to record the transfer of such shares, the Corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner.

 

Section 4. CLOSING STOCK TRANSFER BOOK. The Board of Directors may close the Stock Transfer Book of the Corporation for a period not exceeding fifty (50) days preceding the date of any meeting of the stockholders or the date for payment of any dividend or the date for the allotment of rights or the date when any change or conversion or exchange of capital stock shall go into effect or for a period of not exceeding (50) days in connection with obtaining the consent of stockholders for any purpose. However, in lieu of closing the Stock

 

Transfer Book, the Board of Directors may fix in advance a date, not exceeding fifty (50) days preceding the date of any meeting of stockholders or the date for the payment of any dividend or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining such consent, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, and in such case such stockholders, and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting and any adjournment thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such tights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid.

 

Section 5. LOST, DESTROYED AND STOLEN CERTIFICATES. Where the owner of a Certificate for shares claims that such .certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate in place of the original certificate if the owner (a) so requests before the Corporation has notice that the shares have been acquired by a bona fide purchaser; (b) files with the Corporation a sufficient indemnity bond; and (c) satisfies such other reasonable requirements, including evidence of such loss, destruction, or wrongful taking, as may be imposed by the Corporation.

 

ARTICLE IX

Dividends

 

Section 1. SOURCES OF DIVIDENDS. The directors of the Corporation, subject to any restrictions contained in the statutes and Certificate of Incorporation, may declare and pay dividends upon the shares of the capital stock of the Corporation either (a) out of its new assets in excess of its capital, or (b) in case there shall be no such excess, out of its net profits for the fiscal year then current or the current and preceding fiscal year.

 

Section 2. RESERVES. Before the payment of any dividend, the directors of the Corporation may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose, and the directors may abolish any-such reserve in the manner in which it was created.

 

 
7
 

 

Section 3. RELIANCE ON CORPORATE RECORDS. A director shall be fully protected in relying in good faith upon the books of account of the Corporation or statements prepared by any of its officials as to the value and amount of the assets, liabilities and net profits of the Corporation, or any other-facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.

 

Section 4. MANNER OF PAYMENT. Dividends may be paid in cash, in property, or in shares of the capital stock of the Corporation at par.

 

ARTICLE X

Seal

 

The Corporate seal, subject to alteration by the Board of Directors, shall be in the form of a circle and shall bear the name of the Corporation and shall indicate its formation under the laws of the State of Delaware. Such seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

ARTICLE XI

Fiscal Year

 

Except as from time to time otherwise provided by the Board of Directors, the fiscal year of the Corporation shall be the calendar year.

 

ARTICLE XII

Amendments

 

Section 1. BY THE STOCKHOLDERS. Except as otherwise provided in the Certificate of Incorporation or in these Bylaws, these By-Laws maybe amended or repealed, or new By-Laws may be made and adopted by a majority vote of all the stock of the Corporation issued and outstanding and entitled to vote at any annual or special meeting of the stockholders, provided that notice of intention to amend shall have been contained in the notice of meeting.

 

Section 2. BY THE DIRECTORS. Except as otherwise provided in the Certificate of Incorporation or in these By-Laws, these By-Laws, including amendments adopted by the stockholders, may be amended or repealed by a majority vote of the whole Board of Directors at any regular or special meeting of the Board, or by consent, provided that the stockholders may from time to time specify particular provisions of the By-Laws which shall not be amended by the Board of Directors.

 

ARTICLE XIII

Indemnification

 

The Board of Directors may adopt any reasonable provisions to indemnify themselves and/or officers, to the maximum extent permitted by law.

 

 

8




EXHIBIT 99.1

 

TREATY Energy Corporation

August 21, 2015 __:__ AM [PM]

 

NEW ORLEANS, August 21, 2015 /PRNewswire/ -- TREATY Energy Corporation (TECO), a growth-oriented energy company in the oil and gas industry (sometimes referred to as the "Company"), today filed a Form 8-K announcing its reorganization in Delaware and significant corporate actions since Its May 2015 Board Meeting

 

Consistent with the commitment of Company’s new management to be fully disclosive, the Board of Directors is pleased to advise our shareholders that the Company has today filed a Form 8-K with regard to a reorganization in Delaware and significant corporate actions since our May 14, 2015 Board Meeting. Such 8-K can be accessed on the EDGAR service of the SEC at www.sec.gov. In that context, all future filings for the Company will be filed as Trimerica Energy Corporation, the Successor to TECO.

 

Company Chairman Christopher Tesarski reports “The Board is united and stalwart in its desire to provide our faithful and dedicated shareholders a vehicle with which we can move the Company forward towards a new vision of an energy company that is committed to restoring investor confidence and solid return on investment.” Continuing, Mr. Tesarski indicated: “Change is never easy. The last several weeks have been filled with extensive hard work wrought by your Board, your management and our methodical and diligent advisors. WE HAVE TO GET IT RIGHT! We as a Board believe we are well on our way.”

 

THE BOARD OF DIRECTORS

 

Contact:

TREATY Energy Corporation (hereafter Trimerica Energy Corporation)

Investor Relations

investors@treatyenergy.com

Tel: 504-524-6987

 

Company Links

Website: http://www.treatyenergy.com

Facebook: https://www.facebook.com/TreatyEnergyCorp

Twitter: https://twitter.com/TreatyEnergyCo

 

About TREATY Energy Corporation (hereafter Trimerica Energy Corporation)

 

TREATY, a developmental stage energy company, is engaged in the acquisition, development and production of oil and natural gas. TREATY acquires and develops oil and gas leases which have "proven but undeveloped reserves" at the time of acquisition. These properties are not strategic to large exploration-oriented oil and gas companies. This strategy allows TREATY to develop and produce oil and natural gas with tremendously decreased risk, cost and time involved in traditional exploration.

 

Forward-Looking Statements

 

Statements herein express management's beliefs and expectations regarding future performance and are forward-looking and involve risks and uncertainties, including, but not limited to, raising working capital and securing other financing; responding to competition and rapidly changing technology; and other risks. These risks will be or are detailed in the Company's filings with the Securities and Exchange Commission, including Forms 10-K, 10-Q and 8-K. Actual results may differ materially from such forward-looking statements.