As filed with the Securities and Exchange Commission on August 25,
2017
Registration No. __________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Torchlight Energy Resources, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Nevada
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1311
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74-3237581
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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5700 W. Plano Parkway, Suite 3600
Plano, Texas 75093
(214) 432-8002
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive
Offices)
John A. Brda
President
5700 W. Plano Parkway, Suite 3600
Plano, Texas 75093
(214) 432-8002
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies to:
Robert D. Axelrod
Axelrod, Smith & Kirshbaum
5300 Memorial Drive, Suite 1000
Houston, Texas 77007
(713) 861-1996
Approximate Date of Commencement of Proposed Sale to the Public:
From time to time after the effective date of this registration
statement.
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: ☒
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☐
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Smaller
reporting company ☒
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Emerging
growth company ☐
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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 7(a)(2)(B) of Securities Act.
☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee (4)
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Common
Stock, par value $0.001 per share
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(1)(2)
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(3)
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(3)
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N/A
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Preferred Stock,
par value $0.001 per share
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(1)(2)
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(3)
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(3)
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N/A
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Warrants
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(1)(2)
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(3)
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(3)
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N/A
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Units
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(1)(2)
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(3)
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(3)
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N/A
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Rights
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(1)(2)
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(3)
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(3)
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N/A
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Total
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$75,000,000
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$8,692.50
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(1)
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There
is being registered hereunder an indeterminate number or amount of
common stock and preferred stock, warrants to purchase common
stock, units consisting of combinations of any of the foregoing or
rights to purchase any of the foregoing as shall have an aggregate
offering price not to exceed $75,000,000. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder. The proposed maximum initial offering price
per unit will be determined, from time to time, by the registrant
in connection with the issuance by the registrant of the securities
registered hereunder. Pursuant to Rule 457(i), the securities
registered also include such indeterminate number of shares of
common stock and preferred stock as may be issued upon conversion
of or exchange for preferred stock that provide for conversion or
exchange, upon exercise of warrants or rights or pursuant to the
anti-dilution provisions of any such securities.
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(2)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also registers a currently indeterminate
number of additional shares of our common stock that may be
issuable with respect to the shares being registered hereunder as a
result of stock splits, stock dividends or similar
transactions.
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(3)
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The
proposed maximum aggregate offering price per class of security
will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities
registered hereunder and is not specified as to each class of
security pursuant to General Instruction II.D. of Form S-3 under
the Securities Act
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(4)
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Calculated
pursuant to Rule 457(o) under the Securities Act.
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The registrants hereby amend this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
1
The information in this prospectus is not complete and may be
changed. We may not complete the offering and issue these
securities until the registration statement filed with the
Securities and Exchange Commission is effective. The prospectus is
not an offer to sell these securities nor a solicitation of an
offer to buy these securities in any jurisdiction where the offer
and sale is not permitted.
Subject to Completion, Dated August 25, 2017
Prospectus
Torchlight Energy Resources, Inc.
$75,000,000
COMMON STOCK
PREFERRED STOCK
WARRANTS
UNITS
RIGHTS
We may
offer and sell the following securities from time to time in one or
more classes or series and in amounts, at prices and on terms that
we will determine at the time of the offering, with an aggregate
offering price not to exceed $75,000,000:
●
shares of common
stock;
●
shares of preferred
stock;
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warrants;
●
units consisting of
combinations of any of the foregoing; and/or
●
rights to purchase
any of the foregoing.
This
prospectus provides you with a general description of these
securities. Each time we will offer and sell them, we will provide
their specific terms in a supplement to this prospectus. Such
prospectus supplement may add, update, or change information
contained in this prospectus. You should read this prospectus and
the applicable prospectus supplement, as well as all documents
incorporated by reference in this prospectus and any accompanying
prospectus supplement, carefully before you invest in our
securities. This prospectus may not be used to offer and sell
securities, unless accompanied by a prospectus
supplement.
We may
offer the securities directly, through agents designated from time
to time, to or through underwriters or dealers, or through a
combination of these methods. If any agents or underwriters are
involved in the sale of any of the securities, their names, and any
applicable purchase price, fee, commission or discount arrangement
between or among them, will be set forth, or will be calculable
from the information set forth, in the applicable prospectus
supplement. For more information on this topic, please see
“Plan of Distribution.”
Our
common stock is listed on the NASDAQ Capital Market under the
symbol “TRCH.”
Investing in any of our securities involves risk. Please see the
“Risk Factors” sections beginning on page 6 for a discussion of certain
risks that you should consider in connection with an investment in
the securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The
date of this prospectus is _________ __, 2017.
2
TABLE OF CONTENTS
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Page
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ABOUT
THIS PROSPECTUS
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4
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WHERE
YOU CAN FIND ADDITIONAL INFORMATION
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4
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INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
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4
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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THE
COMPANY
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6
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RISK
FACTORS
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6
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USE OF
PROCEEDS
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6
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PLAN OF
DISTRIBUTION
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7
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DESCRIPTION
OF COMMON AND PREFERRED STOCK
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8
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DESCRIPTION
OF WARRANTS
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10
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DESCRIPTION
OF UNITS
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10
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DESCRIPTION
OF RIGHTS
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11
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EXPERTS
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12
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LEGAL
MATTERS
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12
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3
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (“SEC”)
utilizing what is commonly referred to as a shelf registration
process. Under this shelf registration process, we may offer and
sell any combination of the securities described in this prospectus
in one or more offerings. This prospectus provides you with a
general description of the securities we may offer. Each time we
offer to sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that
offering and the securities offered by us in that offering. The
prospectus supplement may also add, update, or change information
contained in this prospectus. If there is any inconsistency between
the information in this prospectus and a prospectus supplement, you
should rely on the information provided in the prospectus
supplement. This prospectus does not contain all of the information
included in the registration statement. The registration statement
filed with the SEC includes exhibits that provide more details
about the matters discussed in this prospectus. You should
carefully read this prospectus, the related exhibits filed with the
SEC, and any prospectus supplement, together with the additional
information described below under the heading “Where You Can
Find Additional Information.”
You
should rely only on the information contained, or incorporated by
reference, in this prospectus and in any accompanying prospectus
supplement. We have not authorized any other person to provide you
with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. We are not
making an offer of the securities covered by this prospectus in any
state where the offer is not permitted. You should assume that the
information appearing in this prospectus, any prospectus
supplement, and any other document incorporated by reference is
accurate only as of the date on the front cover of the respective
document. Our business, financial condition, results of operations,
and prospects may have changed since those dates.
Under
no circumstances should the delivery of this prospectus to you
create any implication that the information contained in this
prospectus is correct as of any time after the date of this
prospectus.
Unless
otherwise indicated, or unless the context otherwise requires, all
references in this prospectus to “Torchlight,”
“we,” “us,” and “our” mean
Torchlight Energy Resources, Inc. and our consolidated
subsidiaries. In this prospectus, we sometimes refer to the shares
of common stock, shares of preferred stock, warrants, units and
rights consisting of combinations of any of the foregoing
collectively as the “securities.”
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file
annual, quarterly and current reports, proxy statements and other
documents with the SEC. You may read and copy, at prescribed rates,
any documents we have filed with the SEC at its Public Reference
Room located at 100 F Street, N.E., Washington, DC 20549. You may
obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. We also file these documents
with the SEC electronically. You can access the electronic versions
of these filings on the SEC’s website found
at www.sec.gov.
We have
filed with the SEC a registration statement on Form S-3 relating to
the securities covered by this prospectus. This prospectus is a
part of the registration statement and does not contain all the
information in the registration statement. Whenever a reference is
made in this prospectus to a contract, agreement or other document,
the reference is only a summary and you should refer to the
exhibits that are filed with, or incorporated by reference into,
the registration statement for a copy of the contract, agreement or
other document. You may review a copy of the registration statement
at the SEC’s Public Reference Room in Washington, D.C., as
well as on the SEC’s website.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The
rules of the SEC allow us to “incorporate by reference”
into this prospectus the information we file with the SEC, which
means that we can disclose important information to you by
referring you to that information. The information incorporated by
reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and
supersede that information. We incorporate by reference the
documents listed below:
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Our Annual Report
on Form 10-K for the fiscal year ended December 31, 2016, filed
with the SEC on March 31, 2017;
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Our Quarterly
Reports on Form 10-Q filed for the quarter ended March 31, 2017,
filed with the SEC on May 12, 2017, and the quarter ended June 30,
2017, as filed with the SEC on August 8, 2017;
4
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Our Current Reports
on Form 8-K, as filed with the SEC on January 10, 2017, February 3,
2017, April 14, 2017 and August 22, 2017; and
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The description of
our common stock, par value $0.001 per share, contained in our
registration statement on Form 8-A (Registration Statement No.
001-36247) filed with the SEC on December 13, 2013, including any
amendment or report filed for the purpose of updating such
description.
All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act (excluding any information furnished
pursuant to Item 2.02 or Item 7.01, or any corresponding
information furnished under Item 9.01, on any Current Report on
Form 8-K) after the date of the initial registration statement and
prior to the effectiveness of the registration statement and after
the date of this prospectus and prior to the termination of each
offering under this prospectus shall be deemed to be incorporated
in this prospectus by reference and to be a part hereof from the
date of filing of such documents.
Any
statement contained in a document incorporated, or deemed to be
incorporated, by reference in this prospectus shall be deemed
modified, superseded, or replaced for purposes of this prospectus
to the extent that a statement contained in this prospectus or in
any subsequently filed document that also is, or is deemed to be
incorporated, by reference in this prospectus modifies, supersedes,
or replaces such statement. Any statement so modified, superseded,
or replaced shall not be deemed, except as so modified, superseded,
or replaced, to constitute a part of this prospectus.
We will
provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered, upon that
person’s written or oral request, a copy of any or all of the
information incorporated by reference in this prospectus (other
than exhibits to those documents, unless the exhibits are
specifically incorporated by reference into those documents).
Requests should be directed to:
John A.
Brda, President
Torchlight
Energy Resources, Inc.
5700 W.
Plano Parkway, Suite 3600
Plano,
Texas 75093
Telephone:
(214) 432-8002
Email:
john@torchlightenergy.com
You
also may access these filings on our website at www.torchlightenergy.com. We do not
incorporate the information on our website into this prospectus or
any supplement to this prospectus and you should not consider any
information on, or that can be accessed through, our website as
part of this prospectus or any supplement to this prospectus (other
than those filings with the SEC that we specifically incorporate by
reference into this prospectus or any supplement to this
prospectus).
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, including information included or incorporated by
reference in this prospectus or any supplement to this prospectus,
may contain forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. These
forward-looking statements include, but are not limited to,
statements about our plans, objectives, expectations and intentions
that are not historical facts, and other statements identified by
words such as “may,” “will,”
“expects,” believes,” “plans,”
“estimates,” “potential,” or
“continue,” or the negative thereof or other and
similar expressions are forward-looking statements. In addition, in
some cases, you can identify forward-looking statements by words of
phrases such as “trend,” “potential,”
“opportunity,” “believe,”
“comfortable,” “expect,”
“anticipate,” “current,”
“intention,” “estimate,”
“position,” “assume,”
“outlook,” “continue,”
“remain,” “maintain,”
“sustain,” “seek,” “achieve,”
and similar expressions. These forward looking statements are based
on current beliefs and expectations of management and are
inherently subject to significant business, economic and
competitive uncertainties and contingencies, many of which are
beyond our control. In addition, these forward-looking statements
are subject to assumptions with respect to future business
strategies and decisions that are subject to change. In addition to
the factors set forth in this prospectus and the documents
incorporated by reference in this prospectus, including under the
section entitled “Risk Factors” in this prospectus and
in our Annual Report on Form 10-K, as amended, for the year ended
December 31, 2016 and in any other reports that we file with
the SEC, the following factors, among others, could cause actual
results to differ materially from the anticipated results: oil and
natural gas prices; our ability to raise or access capital; general
economic or industry conditions, nationally and/or in the
communities in which our company conducts business; changes in the
interest rate environment; legislation or regulatory requirements;
conditions of the securities markets; changes in accounting
principles, policies or guidelines; financial or political
instability; acts of war or terrorism; and other economic,
competitive, governmental, regulatory and technical factors
affecting our operations, products and prices.
5
All
forward-looking statements speak only as of the date of this
prospectus or, in the case of any documents incorporated by
reference in this prospectus, the date of such document, in each
case based on information available to us as of such date, and we
assume no obligation to update any forward-looking statements,
except as required by law.
THE COMPANY
We are
an energy company engaged in the acquisition, exploration,
exploitation and/or development of oil and natural gas properties
in the United States. We have been in business since
2010.
Our
primary focus is on the development of interests in oil and gas
projects we hold in West Texas, including the Orogrande Project in
Hudspeth County, Texas and the Hazel Project in the Midland Basin.
We are in the process of divesting our interests in all other oil
and gas projects other than the Orogrande Project and the Hazel
Project. We may be involved in other oil and gas projects moving
forward, pending adequate funding.
Torchlight Energy
Resources, Inc. is a Nevada corporation. We operate our business
through four wholly-owned subsidiaries, Torchlight Energy, Inc.,
also a Nevada corporation, Torchlight Energy Operating, LLC, a
Texas limited liability company, Hudspeth Oil Corporation, a Texas
corporation, and Torchlight Hazel, LLC, a Texas limited liability
company. We currently have four full time employees.
Our
principal executive offices are located at 5700 W. Plano Parkway,
Suite 3600, Plano, Texas 75093. The telephone number of our
principal executive offices is (214) 432-8002.
RISK FACTORS
Investing in our
securities involves a high degree of risk. Before deciding to
purchase any of our securities, you should carefully consider the
discussion of risks and uncertainties:
●
under the heading
“Risk Factors” contained in our Annual Report on Form
10-K for the fiscal year that ended December 31, 2016, which is
incorporated by reference in this prospectus; and
●
in any other place
in this prospectus, any applicable prospectus supplement as well as
in any document that is incorporated by reference in this
prospectus.
See the
section entitled “Where You Can Find Additional
Information” in this prospectus. The risks and uncertainties
we discuss in the documents incorporated by reference in this
prospectus are those we currently believe may materially affect us.
Additional risks and uncertainties that we do not presently know
about or that we currently believe are not material may also
adversely affect our business. If any of the risks and
uncertainties described in this prospectus or the documents
incorporated by reference herein actually occur, our business,
financial condition and results of operations could be adversely
affected in a material way. This could cause the trading price of
the common stock to decline, perhaps significantly, and you may
lose part or all of your investment.
USE OF PROCEEDS
Unless
otherwise specified in an accompanying prospectus supplement, we
expect to use the net proceeds from the sale of the securities
offered by this prospectus and any accompanying prospectus
supplement for general corporate purposes, which may include, among
other things:
●
reduction or
refinancing of debt or other corporate obligations;
●
additions to our
working capital;
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capital
expenditures; and
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potential future
acquisitions.
Any
specific allocation of the net proceeds of an offering of
securities to a specific purpose will be determined at the time of
the offering and will be described in an accompanying prospectus
supplement. We may invest funds not required immediately for these
purposes in marketable securities and short-term investments. The
precise amount and timing of the application of these proceeds will
depend upon our funding requirements and the availability and cost
of other funds. We have not determined the amounts we plan to spend
on the areas listed above or the timing of these expenditures. As a
result, our management will have broad discretion to allocate the
net proceeds of any offering.
6
PLAN OF DISTRIBUTION
We may
sell the securities offered by this prospectus and applicable
prospectus supplements in one or more of the following ways from
time to time:
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through
underwriters or dealers;
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through
agents;
●
directly to
purchasers, including institutional investors and our
affiliates;
●
through a
combination of any such methods of sale; or
●
through any other
methods described in a prospectus supplement.
Any
such underwriter, dealer, or agent may be deemed to be an
underwriter within the meaning of the Securities Act.
The
applicable prospectus supplement relating to the securities will
set forth:
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the offering terms,
including the name or names of any underwriters, dealers, or
agents;
●
the purchase price
of the securities and the estimated net proceeds to us from such
sales;
●
any underwriting
discounts, commissions, and other items constituting compensation
to underwriters, dealers, or agents;
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any initial public
offering price, if applicable;
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any discounts or
concessions allowed or reallowed or paid by underwriters or dealers
to other dealers;
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any delayed
delivery arrangements; and
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any securities
exchanges on which the securities may be listed.
If
underwriters or dealers are used in the sale, the securities will
be acquired by the underwriters or dealers for their own account
and may be resold from time to time in one or more
transactions:
●
at a fixed price or
prices, which may be changed;
●
at market prices
prevailing at the time of sale;
●
at prices related
to such prevailing market prices; or
●
at negotiated
prices.
The
securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or
directly by one or more of such firms. Unless otherwise stated in
an applicable prospectus supplement, the obligations of
underwriters or dealers to purchase the securities will be subject
to certain customary closing conditions and the underwriters or
dealers will be obligated to purchase all the securities if any of
the securities are purchased. Any public offering price and any
discounts or concessions allowed or reallowed or paid by
underwriters or dealers to other dealers may be changed from time
to time.
Securities may be
sold directly by us, or through agents designated by us, from time
to time. Any agent involved in the offer or sale of the securities
in respect of which this prospectus and a prospectus supplement is
delivered will be named, and any commissions payable by us to such
agent will be set forth, in the prospectus supplement. Unless
otherwise indicated in the prospectus supplement, any such agent
will be acting on a best efforts basis for the period of its
appointment. Any agent selling the securities covered by this
prospectus may be deemed to be an underwriter as that term is
defined in the Securities Act.
7
If so
indicated in the prospectus supplement, we will authorize
underwriters, dealers, or agents to solicit offers from certain
specified institutions to purchase securities from us at the public
offering price set forth in the prospectus supplement pursuant to
delayed delivery contracts providing for payment and delivery on a
specified date in the future. Such contracts will be subject to any
conditions set forth in the prospectus supplement and the
prospectus supplement will set forth the commission payable for
solicitation of such contracts. The underwriters and other persons
soliciting such contracts will have no responsibility for the
validity or performance of any such contracts.
Underwriters,
dealers, and agents may be entitled under agreements entered into
with us to be indemnified by us against certain civil liabilities,
including liabilities under the Securities Act, or to contribution
by us to payments which they may be required to make. The terms and
conditions of such indemnification will be described in an
applicable prospectus supplement. Underwriters, dealers, and agents
may be customers of, engage in transactions with, or perform
services for us in the ordinary course of business.
Each
class or series of securities will be a new issue of securities
with no established trading market, other than the common stock,
which is listed on NASDAQ. We may elect to list any other class or
series of securities on any exchange, other than the common stock,
but we are not obligated to do so. Any underwriters to whom
securities are sold by us for public offering and sale may make a
market in such securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any
time without notice. No assurance can be given as to the liquidity
of the trading market for any securities.
Certain
persons participating in any offering of securities may engage in
transactions that stabilize, maintain or otherwise affect the price
of the securities offered in accordance with Regulation M under the
Exchange Act. In connection with any such offering, the
underwriters or agents, as the case may be, may purchase and sell
securities in the open market. These transactions may include
over-allotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering.
Stabilizing transactions consist of certain bids or purchases for
the purpose of preventing or retarding a decline in the market
price of the securities; and syndicate short positions involve the
sale by the underwriters or agents, as the case may be, of a
greater number of securities than they are required to purchase
from us, as the case may be, in the offering. The underwriters may
also impose a penalty bid, whereby selling concessions allowed to
syndicate members or other broker-dealers for the securities sold
for their account may be reclaimed by the syndicate if such
securities are repurchased by the syndicate in stabilizing or
covering transactions. These activities may stabilize, maintain, or
otherwise affect the market price of the securities, which may be
higher than the price that might otherwise prevail in the open
market, and if commenced, may be discontinued at any time. These
transactions may be effected on NASDAQ, in the over-the-counter
market or otherwise. These activities will be described in more
detail in the sections entitled “Plan of Distribution”
or “Underwriting” in the applicable prospectus
supplement.
The
prospectus supplement or pricing supplement, as applicable, will
set forth the anticipated delivery date of the securities being
sold at that time.
DESCRIPTION OF COMMON AND PREFERRED STOCK
The
following is a description of certain provisions relating to our
capital stock. For additional information regarding our stock,
please refer to our Articles of Incorporation (as amended), our
Amended and Restated Bylaws (“Bylaws”), and the
certificates of designation for each of our two outstanding series
of preferred stock, all of which have previously been filed with
the SEC.
General
Our
authorized capital stock consists of 150,000,000 shares of common
stock, par value $0.001 per share, and 10,000,000 shares of
preferred stock, par value $0.001 per share. As of
August 23, 2017, there were approximately 59,549,375 shares of
common stock outstanding, and no shares of preferred stock
designated or outstanding. Additionally, we currently have warrants
and stock options outstanding to purchase a total of approximately
23,487,409 shares of common stock.
The
Board of Directors previously authorized three different series of
preferred stock—Series A Convertible Preferred Stock, Series
B Convertible Preferred Stock and Series C Convertible Preferred
Stock—but the Board withdrew these designations effective
August 18, 2017. Presently, we have no shares of preferred stock
designated or outstanding.
Common Stock
The
rights of all holders of the common stock are identical in all
respects. Each stockholder is entitled to one vote for
each share of common stock held on all matters submitted to a vote
of the stockholders. The holders of the common stock are
entitled to receive ratably such dividends, if any, as may be
declared by the Board of Directors out of legally available funds.
The current policy of the Board of Directors, however, is to retain
earnings, if any, for reinvestment.
8
Upon
liquidation, dissolution or winding up of the Company, the holders
of the common stock are entitled to share ratably in all aspects of
the Company that are legally available for distribution, after
payment of or provision for all debts and liabilities and after
payment to the holders of preferred stock, if any. The
holders of the common stock do not have preemptive subscription,
redemption or conversion rights under our Articles of
Incorporation. Cumulative voting in the election of Directors is
not permitted. There are no sinking fund provisions applicable to
the common stock. The outstanding shares of common stock are
validly issued, fully paid and nonassessable.
First
American Stock Transfer, Inc. is transfer agent and registrar for
our common stock.
Our
common stock is listed on the NASDAQ Capital Market under the
symbol “TRCH.”
Preferred Stock
Our
Board of Directors can, without approval of our stockholders, issue
one or more series of preferred stock and determine the number of
shares of each series and the rights, preferences, and limitations
of each series. The following description of the terms of the
preferred stock sets forth certain general terms and provisions of
our authorized preferred stock. If we offer preferred stock, a more
specific description will be filed with the SEC, and the
designations and rights of such preferred stock will be described
in a prospectus supplement, including the following
terms:
●
the series, the
number of shares offered, and the liquidation value of the
preferred stock;
●
the price at which
the preferred stock will be issued;
●
the dividend rate,
the dates on which the dividends will be payable, and other terms
relating to the payment of dividends on the preferred
stock;
●
the liquidation
preference of the preferred stock;
●
the voting rights
of the preferred stock;
●
whether the
preferred stock is redeemable, or subject to a sinking fund, and
the terms of any such redemption or sinking fund;
●
whether the
preferred stock is convertible, or exchangeable for any other
securities, and the terms of any such conversion or exchange;
and
●
any additional
rights, preferences, qualifications, limitations, and restrictions
of the preferred stock.
The
description of the terms of the preferred stock that will be set
forth in an applicable prospectus supplement will not be complete
and will be subject to and qualified in its entirety by reference
to the certificate of designation relating to the applicable series
of preferred stock. The registration statement, of which this
prospectus forms a part, will include the certificate of
designation as an exhibit or incorporate it by
reference.
Undesignated
preferred stock may enable our board of directors to render more
difficult or to discourage an attempt to obtain control of us by
means of a tender offer, proxy contest, merger, or otherwise and to
thereby protect the continuity of our management. The issuance of
shares of preferred stock may adversely affect the rights of the
holders of our common stock. For example, any preferred stock
issued may:
●
rank prior to our
common stock as to dividend rights, liquidation preference, or
both;
●
have full or
limited voting rights; and
●
be convertible into
shares of common stock.
As a
result, the issuance of shares of preferred stock may:
●
discourage bids for
our common stock; or
●
otherwise adversely
affect the market price of our common stock or any then existing
preferred stock.
Any
preferred stock will, when issued, be fully paid and
non-assessable.
9
Anti-Takeover Provisions
Our
Bylaws and Nevada law include certain provisions which may have the
effect of delaying or deterring a change in control or in our
management or encouraging persons considering unsolicited tender
offers or other unilateral takeover proposals to negotiate with our
board of directors rather than pursue non-negotiated takeover
attempts. These provisions include authorized blank check preferred
stock, restrictions on business combinations, and the availability
of authorized but unissued common stock.
DESCRIPTION OF WARRANTS
We may
issue warrants to purchase equity securities. Warrants may be
issued independently or together with any other securities and may
be attached to, or separate from, such securities. Each series of
warrants will be issued under a separate warrant agreement to be
entered into between us and any warrant agent. The terms of any
warrants to be issued and a description of the material provisions
of the applicable warrant agreement will be set forth in the
applicable prospectus supplement.
The
applicable prospectus supplement will specify the following terms
of any warrants in respect of which this prospectus is being
delivered:
●
the title of such
warrants;
●
the aggregate
number of such warrants;
●
the price or prices
at which such warrants will be issued;
●
any changes or
adjustments to the exercise price;
●
the securities or
other rights, including rights to receive payment in cash or
securities based on the value, rate, or price of one or more
specified commodities, currencies, securities, or indices, or any
combination of the foregoing, purchasable upon exercise of such
warrants;
●
the price at which,
and the currency or currencies in which the securities or other
rights purchasable upon exercise of, such warrants may be
purchased;
●
the date on which
the right to exercise such warrants shall commence and the date on
which such right shall expire;
●
if applicable, the
minimum or maximum amount of such warrants that may be exercised at
any one time;
●
if applicable, the
designation and terms of the securities with which such warrants
are issued and the number of such warrants issued with each such
security;
●
if applicable, the
date on and after which such warrants and the related securities
will be separately transferable;
●
information with
respect to book-entry procedures, if any;
●
if applicable, a
discussion of any material United States federal income tax
considerations; and
●
any other terms of
such warrants, including terms, procedures and limitations relating
to the exchange and exercise of such warrants.
DESCRIPTION OF UNITS
As
specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock, shares of
preferred stock, or warrants or any combination of such
securities.
10
The
applicable prospectus supplement will specify the following terms
of any units in respect of which this prospectus is being
delivered:
●
the terms of the
units and of any of the common stock, preferred stock, and warrants
comprising the units, including whether and under what
circumstances the securities comprising the units may be traded
separately;
●
a description of
the terms of any unit agreement governing the units;
and
●
a description of
the provisions for the payment, settlement, transfer, or exchange
of the units.
DESCRIPTION OF RIGHTS
We may
issue rights to purchase our common stock, preferred stock,
warrants or units. These rights may be issued independently or
together with any other security offered hereby and may or may not
be transferable by the person receiving the rights in such
offering. In connection with any offering of such rights, we may
enter into a standby arrangement with one or more underwriters or
other purchasers pursuant to which the underwriters or other
purchasers may be required to purchase any securities remaining
unsubscribed for after such offering.
Each
series of rights will be issued under a separate rights agreement
that we will enter into with a bank or trust company, as rights
agent, all as set forth in the applicable prospectus supplement.
The rights agent will act solely as our agent in connection with
the certificates relating to the rights and will not assume any
obligation or relationship of agency or trust with any holders of
rights certificates or beneficial owners of rights. We will file
the rights agreement and the rights certificates relating to each
series of rights with the SEC, and incorporate them by reference as
an exhibit to the registration statement of which this prospectus
is a part on or before the time we issue a series of
rights.
The
applicable prospectus supplement will describe the specific terms
of any offering of rights for which this prospectus is being
delivered, including the following:
●
the date of
determining the stockholders entitled to the rights
distribution;
●
the number of
rights issued or to be issued to each stockholder;
●
the exercise price
payable for each share of preferred stock, common stock or other
securities upon the exercise of the rights;
●
the number and
terms of the shares of preferred stock, common stock or other
securities which may be purchased per each right;
●
the extent to which
the rights are transferable;
●
the date on which
the holder's ability to exercise the rights shall commence, and the
date on which the rights shall expire;
●
the extent to which
the rights may include an over-subscription privilege with respect
to unsubscribed securities;
●
if applicable, the
material terms of any standby underwriting or purchase arrangement
entered into by us in connection with the offering of such
rights;
●
any other terms of
the rights, including the terms, procedures, conditions and
limitations relating to the exchange and exercise of the rights;
and
●
any other
information we think is important about the rights.
The
description in the applicable prospectus supplement of any rights
that we may offer will not necessarily be complete and will be
qualified in its entirety by reference to the applicable rights
certificate, which will be filed with the SEC. To the extent the
information contained in the prospectus supplement differs from
this summary description, you should rely on the information in the
prospectus supplement.
11
EXPERTS
The
consolidated financial statements incorporated in this prospectus
by reference from Torchlight Energy Resources, Inc.’s Annual
Report on Form 10-K for the year ended December 31, 2016 have been
audited by Briggs & Veselka Co., our
independent registered public accounting firm (with respect to
the financial statements for the year ended December 31, 2016), and
by Calvetti Fergusson, our previous independent registered
public accounting firm (with respect to the financial statements
for the year ended December 31, 2015), as stated in their reports
included in such consolidated financial statements, and have been
so incorporated in reliance upon the reports of such firms given
upon their authority as experts in accounting and
auditing.
Certain
information contained in the documents we incorporate by reference
in this prospectus with respect to the oil and natural gas reserves
associated with our oil and natural gas prospects is derived from
the reports of PeTech Enterprises, Inc., an independent petroleum
and natural gas consulting firm, and has been incorporated by
reference in this prospectus upon the authority of said firm as an
expert with respect to the matters covered by such reports and in
giving such reports.
LEGAL MATTERS
Certain
legal matters in connection with the offering described in this
prospectus will be passed upon for us by Axelrod, Smith &
Kirshbaum. Any underwriters will be advised about legal matters by
their own counsel, who will be named in the applicable prospectus
supplement.
PART II – INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses, all of which will
be borne by us, in connection with the sale and distribution of the
securities being registered.
|
Securities
and Exchange Commission Registration Fee
|
|
$8,692.50
|
|
|
Printing
and Engraving Expenses
|
|
*
|
|
|
Accounting
Fees and Expenses
|
|
*
|
|
|
Legal
Fees and Expenses
|
|
*
|
|
|
Blue
Sky Qualification Fees and Expenses
|
|
*
|
|
|
Miscellaneous
|
|
*
|
|
|
|
|
*
|
|
|
TOTAL
|
|
*
|
|
*
These fees are
calculated based on the number of issuances and amount of
securities offered and accordingly cannot be estimated at this
time. An estimate of the aggregate amount of these expenses will be
reflected in the applicable prospectus supplement.
Item 14. Indemnification of Directors and Officers.
Our
Bylaws provide that we shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, except an action by or
in our right, by reason of the fact that the person is or was our
director, officer, employee or agent, or is or was serving at our
request as a director, officer, employee or agent of another
enterprise, against expenses, including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action,
suit or proceeding if the person: (a) is not liable pursuant to
Section 78.138 of the Nevada Revised Statutes (“NRS”);
or (b) acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to our best interests,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, does not, of itself,
create a presumption that the person is liable pursuant to NRS
78.138 or did not act in good faith and in a manner which he or she
reasonably believed to be in or not opposed to our best interests,
or that, with respect to any criminal action or proceeding, he or
she had reasonable cause to believe that the conduct was
unlawful.
12
Our
Bylaws also provide that we shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in our right to procure a
judgment in our favor by reason of the fact that the person is or
was our director, officer, employee or agent, or is or was serving
at our request as a director, officer, employee or agent of another
enterprise against expenses, including amounts paid in settlement
and attorneys’ fees actually and reasonably incurred by the
person in connection with the defense or settlement of the action
or suit if the person: (a) is not liable pursuant to NRS 78.138; or
(b) acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to our best
interests. Indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable to us or for amounts paid in
settlement to us, unless and only to the extent that the court in
which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems
proper.
Further, our Bylaws
provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be
paid by the Corporation as they are incurred and in advance of the
final disposition of the action, suit or proceeding, upon receipt
of an undertaking by or on behalf of the director or officer to
repay the amount if it is ultimately determined by a court of
competent jurisdiction that the director or officer is not entitled
to be indemnified by us.
Sections 78.7502
and 78.751 of the NRS permit the indemnifications described
above. Further, Section 78.7502 provides that, to the
extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any
claim, issue or matter therein, we are required to indemnify him or
her against expenses, including attorneys’ fees, actually and
reasonably incurred by him or her in connection with the
defense.
Item
16. Exhibits.
The
following is a list of exhibits filed as part of this registration
statement. Where so indicated by footnote, exhibits which were
previously filed are incorporated herein by reference. Any
statement contained in an incorporated document will be deemed to
be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any
other subsequently filed incorporated document modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration
statement.
|
Exhibit No.
|
|
Description
|
|
1.1
|
|
Form of
Underwriting Agreement **
|
|
|
|
|
|
2.1
|
|
Share
Exchange Agreement dated November 23,
2010. (Incorporated by reference from Form 8-K filed
with the SEC on November 24, 2010.) *
|
|
|
|
|
|
4.1
|
|
12%
2020 Senior Unsecured Promissory Note (form of) (Incorporated by
reference from Form 10-Q filed with the SEC on May 12, 2017)
*
|
|
|
|
|
|
4.2
|
|
Form of
Certificate of Designation of Preferred Stock and Preferred Stock
Certificate **
|
|
|
|
|
|
4.3
|
|
Form of
Common Stock Warrant Agreement and Warrant Certificate
**
|
|
|
|
|
|
4.4
|
|
Form of
Preferred Stock Warrant Agreement and Warrant Certificate
**
|
|
4.5
|
|
Form of
Unit Agreement and Unit Certificate **
|
|
|
|
|
|
4.6
|
|
Form of
Rights Agreement, including Form of Rights Certificate
**
|
|
|
|
|
|
|
||
|
|
|
|
|
|
||
|
|
|
|
|
|
||
|
|
|
|
|
23.3
|
|
Consent
of Axelrod, Smith & Kirshbaum (incorporated in Exhibit
5.1)
|
|
|
|
|
|
|
||
|
|
|
|
|
24.1
|
|
Power
of Attorney (included in signature page hereto)
|
13
*
Incorporated by reference from our previous filings with the
SEC.
** To
be filed, if necessary, by amendment or as an exhibit to a current
report on Form 8-K of the registrant.
Item 17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) To
include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing
the information required by section 10(a) of the Securities Act
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; or
14
(5)
That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to section 15(d) of the Securities Exchange Act) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Plano, State
of Texas, on August 25, 2017.
TORCHLIGHT
ENERGY RESOURCES, INC.
By:
/s/ John A. Brda
John A.
Brda
President and Chief
Executive Officer
POWER OF ATTORNEY
We the
undersigned officers and directors of Torchlight Energy Resources,
Inc., hereby, severally constitute and appoint John A. Brda and
Gregory McCabe, each of them singly, our true and lawful attorneys
with full power to them and each of them singly, to sign for us and
in our names in the capacities indicated below, the registration
statement on Form S-3 filed herewith and any and all pre-effective
and post-effective amendments to said registration statement and
any subsequent registration statement for the same offering which
may be filed under Rule 462(b) and generally to do all such things
in our names and on our behalf in our capacities as officers and
directors to enable Torchlight Energy Resources, Inc. to comply
with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by
our said attorneys, or any of them, to said registration statement
and any and all amendments thereto or to any subsequent
registration statement for the same offering which may be filed
under Rule 462(b).
15
Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ John A. Brda
|
|
|
|
|
|
John A.
Brda
|
|
Director,
Chief Executive Officer, President and Secretary
|
|
August
25, 2017
|
|
|
|
|
|
|
|
/s/ Gregory McCabe
|
|
|
|
|
|
Gregory
McCabe
|
|
Director
(Chairman of the Board)
|
|
August
25, 2017
|
|
|
|
|
|
|
|
/s/ Roger N. Wurtele
|
|
|
|
|
|
Roger
N. Wurtele
|
|
Chief
Financial Officer and Principal Accounting Officer
|
|
August
25, 2017
|
|
|
|
|
|
|
|
/s/ E. Scott Kimbrough
|
|
|
|
|
|
E.
Scott Kimbrough
|
|
Director
|
|
August
25, 2017
|
|
|
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/s/ R. David Newton
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R.
David Newton
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Director
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August
25, 2017
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/s/ Alexandre Zyngier
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Alexandre
Zyngier
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Director
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August
25, 2017
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/s/ Michael J. Graves
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Michael
J. Graves
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Director
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August
25, 2017
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16