CERTIFICATE OF MERGER
Merging Ridgeline Cobalt Inc., a Delaware corporation, with and into Torchlight Mining Corp., a British Columbia corporation
Pursuant to Section 253 of the Delaware General Corporation Law
Filed with the Secretary of State of the State of Delaware
July 16, 2024
CERTIFICATE OF MERGER
OF
RIDGELINE COBALT INC.
(a Delaware corporation)
WITH AND INTO
TORCHLIGHT MINING CORP.
(a British Columbia corporation)
Pursuant to Section 253 of the General Corporation Law of the State of Delaware
The undersigned corporation, Torchlight Mining Corp. ("Torchlight" or "TMC"), a corporation duly organized and existing under the laws of the Province of British Columbia, Canada, and duly registered as a foreign corporation authorized to transact business in the State of Delaware, hereby certifies as follows for the purpose of effecting the merger of Ridgeline Cobalt Inc. ("Ridgeline" or "RCI"), a corporation duly incorporated and existing under the laws of the State of Delaware, with and into Torchlight, pursuant to Section 253 of the General Corporation Law of the State of Delaware (Title 8 of the Delaware Code, Chapter 1, § 253) (the "DGCL"):
SECTION 1: IDENTITY AND JURISDICTION OF THE CONSTITUENT CORPORATIONS
1.1 The name, jurisdiction of organization, and certain identifying information of the surviving corporation in the merger is as follows:
Surviving Corporation: Torchlight Mining Corp.
Jurisdiction of Incorporation/Organization: Province of British Columbia, Canada, pursuant to the Business Corporations Act (British Columbia), S.B.C. 2002, c. 57.
Foreign Corporation Registration: Torchlight Mining Corp. is duly registered and authorized to transact business as a foreign corporation in the State of Delaware.
Delaware Registered Agent: Capitol Registered Agents, Inc., 850 New Burton Road, Suite 201, Dover, Delaware 19904.
Federal Employer Identification Number (EIN): 98-0743218.
Principal Place of Business: 1200 – 885 West Georgia Street, Vancouver, British Columbia V6C 3E8, Canada.
1.2 The name, jurisdiction of incorporation, and certain identifying information of the corporation to be merged into the Surviving Corporation is as follows:
Merging Corporation: Ridgeline Cobalt Inc.
Jurisdiction of Incorporation: State of Delaware. Ridgeline Cobalt Inc. was incorporated under the laws of the State of Delaware by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware.
Delaware Registered Agent: National Corporate Filing Services, Inc., 1209 Orange Street, Wilmington, Delaware 19801.
Federal Employer Identification Number (EIN): 83-2196504.
Principal Place of Business: 44 Lakeshore Drive, Suite 300, Marquette, Michigan 49855.
1.3 The Merging Corporation, Ridgeline Cobalt Inc., is sometimes referred to herein as the "Subsidiary," and the Surviving Corporation, Torchlight Mining Corp., is sometimes referred to herein as the "Parent." Ridgeline and Torchlight are collectively referred to herein as the "Constituent Corporations."
SECTION 2: OWNERSHIP OF STOCK OF THE MERGING CORPORATION
2.1 The authorized and outstanding capital stock of Ridgeline Cobalt Inc. consists solely of 18,000,000 shares of common stock, par value $0.001 per share (the "Shares"). As of the date hereof, all 18,000,000 Shares are issued and outstanding, fully paid, and non-assessable. Ridgeline has no other class or series of capital stock authorized, issued, or outstanding, and there are no outstanding options, warrants, convertible securities, or other rights to acquire capital stock of Ridgeline that have not been cancelled, terminated, or exercised prior to the date hereof.
2.2 As of the date hereof, Torchlight Mining Corp. owns of record and beneficially 16,740,000 Shares, constituting approximately 93.0% of the total outstanding Shares of Ridgeline Cobalt Inc. Such Shares are held directly by Torchlight and are not subject to any lien, pledge, encumbrance, security interest, claim, or other restriction of any kind, other than restrictions arising under applicable securities laws.
2.3 Torchlight acquired such 16,740,000 Shares pursuant to a cash tender offer (the "Tender Offer") for all of the outstanding Shares of Ridgeline, which Tender Offer was commenced on March 14, 2024, at an offer price of $2.50 per Share, net to the seller in cash, without interest and subject to any applicable withholding taxes. The Tender Offer was conducted in accordance with and governed by the terms and conditions of that certain Offer-to-Purchase Agreement dated as of May 2, 2024, by and between Torchlight Mining Corp. and Ridgeline Cobalt Inc. (the "Offer Agreement"). The Tender Offer expired in accordance with its terms, and all Shares validly tendered and not properly withdrawn were accepted for payment and paid for by Torchlight in accordance with the Offer Agreement and applicable law.
2.4 By virtue of the foregoing, Torchlight's ownership of 16,740,000 of the 18,000,000 outstanding Shares of Ridgeline (representing approximately 93.0% of the outstanding Shares) satisfies the requirement set forth in Section 253(a) of the DGCL that, in order to effect a short-form merger, the parent corporation must own at least 90% of the outstanding shares of each class of the stock of the subsidiary corporation entitled to vote on such merger. Ridgeline has only one class of stock outstanding — its common stock — and Torchlight owns in excess of 90% thereof.
SECTION 3: AUTHORIZATION AND APPROVAL OF THE MERGER
3.1 The Board of Directors of Torchlight Mining Corp. duly adopted resolutions on July 16, 2024 (the "Board Resolutions"), at a meeting duly called and held in accordance with the organizational documents of Torchlight and applicable law, at which a quorum was present and acting throughout, approving and authorizing the merger of Ridgeline Cobalt Inc. with and into Torchlight Mining Corp. pursuant to Section 253 of the DGCL, upon the terms and subject to the conditions set forth in this Certificate of Merger and the Offer Agreement, and authorizing the officers of Torchlight to execute, deliver, and file this Certificate of Merger and all such other documents and instruments, and to take all such other actions, as such officers may deem necessary or advisable to consummate and give effect to the merger and the transactions contemplated hereby.
3.2 Pursuant to Section 253 of the DGCL, no vote or consent of the stockholders of Ridgeline Cobalt Inc. is required for the approval or consummation of this short-form merger. The merger is being effected solely upon the resolution and authority of the Board of Directors of the parent corporation, Torchlight Mining Corp., in accordance with Section 253 of the DGCL.
3.3 No vote, consent, or approval of the shareholders of Torchlight Mining Corp. is required for the consummation of this merger under the applicable laws of the Province of British Columbia, Canada, the Business Corporations Act (British Columbia), the DGCL, or the organizational documents of Torchlight.
SECTION 4: TERMS AND CONDITIONS OF THE MERGER
4.1 Effective Time.
The merger contemplated by this Certificate of Merger (the "Merger") shall become effective upon the filing and acceptance of this Certificate of Merger by the Secretary of State of the State of Delaware on July 16, 2024 (the "Effective Time"). No delayed effective time or future effective date is specified herein; accordingly, the Merger shall be effective upon filing.
4.2 Effect of the Merger.
At the Effective Time, and by virtue of the Merger and without any further action on the part of Torchlight Mining Corp., Ridgeline Cobalt Inc., or any holder of any Shares of Ridgeline:
(a) Ridgeline Cobalt Inc. shall be merged with and into Torchlight Mining Corp., and the separate existence of Ridgeline Cobalt Inc. as a corporation organized under the laws of the State of Delaware shall cease;
(b) Torchlight Mining Corp. shall be the surviving corporation in the Merger (the "Surviving Corporation") and shall continue its corporate existence under the laws of the Province of British Columbia, Canada, and as a foreign corporation authorized to transact business in the State of Delaware, unaffected and unimpaired by the Merger; and
(c) The Merger shall have all of the effects provided under Section 259 of the DGCL, and such other effects as are provided by applicable law.
4.3 Conversion of Shares.
At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any Shares of Ridgeline Cobalt Inc.:
(a) Conversion of Minority Shares. Each Share of common stock, par value $0.001 per share, of Ridgeline Cobalt Inc. that is issued and outstanding immediately prior to the Effective Time and that is not owned, directly or indirectly, by Torchlight Mining Corp. (each, a "Minority Share") shall be converted into the right to receive Two Dollars and Fifty Cents ($2.50) per Share in cash, without interest thereon and subject to any applicable withholding taxes (the "Merger Consideration"). From and after the Effective Time, each such Minority Share shall no longer be outstanding, shall automatically be cancelled and retired, and shall cease to exist, and shall thereafter represent only the right to receive the Merger Consideration in accordance with the terms and conditions set forth in this Certificate of Merger and the Offer Agreement.
(b) Cancellation of Parent-Owned Shares. Each Share of common stock, par value $0.001 per share, of Ridgeline Cobalt Inc. that is issued and outstanding immediately prior to the Effective Time and that is owned, directly or indirectly, by Torchlight Mining Corp. (constituting 16,740,000 Shares as of the date hereof) shall, by virtue of the Merger, be cancelled and retired and shall cease to exist, and no consideration shall be delivered or payable in exchange therefor.
(c) Surrender of Certificates and Book-Entry Positions. From and after the Effective Time, the holders of certificates or book-entry positions that formerly represented Minority Shares shall cease to have any rights with respect to such Shares, except the right to receive the Merger Consideration of $2.50 per Share in cash, without interest, upon the due surrender of such certificates (properly endorsed or accompanied by proper instruments of transfer) or the delivery of appropriate documentation with respect to book-entry positions, to Hargrove Depositary Services, Inc. (the "Depositary"), located at 55 Water Street, New York, New York 10041, or to such other paying agent as may be designated by Torchlight from time to time. Until so surrendered, each such certificate or book-entry position shall, after the Effective Time, represent solely the right to receive the applicable Merger Consideration. No interest shall accrue or be payable on the Merger Consideration.
(d) Lost, Stolen, or Destroyed Certificates. In the event that any certificate formerly representing Minority Shares shall have been lost, stolen, or destroyed, the Depositary shall issue the Merger Consideration payable in respect of such Shares upon the making of an affidavit of that fact by the holder thereof and, if required by the Surviving Corporation or the Depositary, the posting by such holder of an indemnity bond or other security in such reasonable amount as the Surviving Corporation or the Depositary may direct, as indemnity against any claim that may be made against the Surviving Corporation or the Depositary with respect to such certificate.
4.4 Withholding.
The Surviving Corporation and the Depositary shall be entitled to deduct and withhold from any Merger Consideration otherwise payable pursuant to this Certificate of Merger such amounts as may be required to be deducted and withheld under the Internal Revenue Code of 1986, as amended, or any provision of applicable federal, state, local, or foreign tax law. To the extent that amounts are so withheld and remitted to the applicable governmental authority, such amounts shall be treated for all purposes of this Certificate of Merger as having been paid to the holder of Shares in respect of which such deduction and withholding was made.
SECTION 5: TRANSFER AGENT
5.1 The transfer agent for the Shares of Ridgeline Cobalt Inc. immediately prior to the Effective Time of the Merger is Dominion Transfer & Trust Co., located at 1100 Centre Street, Suite 600, Wilmington, Delaware 19805. Following the Effective Time, questions regarding the exchange of certificates or book-entry positions formerly representing Shares of Ridgeline for the Merger Consideration should be directed to the Depositary, Hargrove Depositary Services, Inc., at the address set forth in Section 4.3(c) above.
SECTION 6: EFFECT ON THE SURVIVING CORPORATION
6.1 The articles of incorporation (or equivalent organizational document), bylaws, directors, and officers of Torchlight Mining Corp. as in effect immediately prior to the Effective Time of the Merger shall continue as the articles of incorporation (or equivalent organizational document), bylaws, directors, and officers of the Surviving Corporation following the Effective Time, and shall not be amended, modified, or changed by reason of the Merger.
6.2 As of the Effective Time, Torchlight Mining Corp., as the Surviving Corporation, shall thereupon and thereafter possess all of the rights, privileges, powers, immunities, and franchises, of both a public and a private nature, of each of the Constituent Corporations, and all property, real, personal, and mixed, and all debts due on whatever account, including subscriptions to shares, and all other things in action, and every other interest of or belonging to or due to each of the Constituent Corporations shall be taken and deemed to be transferred to and vested in the Surviving Corporation without further act or deed, all as provided under Section 259 of the DGCL.
6.3 The Surviving Corporation shall thenceforth be responsible and liable for all of the liabilities and obligations of each of the Constituent Corporations, and any claim existing or action or proceeding pending by or against either of the Constituent Corporations may be prosecuted as if the Merger had not taken place, or the Surviving Corporation may be substituted in place thereof. Neither the rights of creditors nor any liens upon the property of either of the Constituent Corporations shall be impaired by the Merger, all as provided under Section 259 of the DGCL.
SECTION 7: NOTICE TO STOCKHOLDERS OF THE MERGING CORPORATION
7.1 In accordance with Section 253(d) of the DGCL, Torchlight Mining Corp. shall, within ten (10) days after the Effective Time of the Merger, cause to be mailed or otherwise delivered to each holder of record of Shares of Ridgeline Cobalt Inc. whose Shares were not tendered in the Tender Offer and have been converted into the right to receive the Merger Consideration pursuant to Section 4.3(a) hereof, a notice (the "Notice of Merger") advising such holder of:
(a) the effectiveness of the Merger and the Effective Time thereof;
(b) the Merger Consideration payable in respect of each Share;
(c) the procedures for surrendering certificates or book-entry positions formerly representing Shares in exchange for the Merger Consideration; and
(d) such holder's right to demand appraisal of such holder's Shares in accordance with Section 262 of the DGCL, and the procedures for exercising such appraisal rights.
7.2 A copy of Section 262 of the DGCL, as in effect on the date of mailing of the Notice of Merger, shall be included with or attached to the Notice of Merger sent to each such holder of record, in compliance with the requirements of Section 253(d) of the DGCL.
7.3 Nothing in this Section 7 shall be construed as limiting, qualifying, or otherwise affecting the rights of any holder of Shares to seek appraisal of such Shares in accordance with Section 262 of the DGCL, and any such appraisal rights shall be governed exclusively by the provisions of Section 262 of the DGCL.
SECTION 8: GOVERNING AGREEMENT
8.1 This Merger is effected pursuant to:
(i) Section 253 of the General Corporation Law of the State of Delaware (Title 8 of the Delaware Code, Chapter 1, § 253);
(ii) the Offer-to-Purchase Agreement dated as of May 2, 2024, by and between Torchlight Mining Corp. and Ridgeline Cobalt Inc. (the "Offer Agreement"), as the same may have been amended, supplemented, or otherwise modified from time to time in accordance with its terms; and
(iii) the resolutions of the Board of Directors of Torchlight Mining Corp. duly adopted on July 16, 2024, approving and authorizing the Merger and the filing of this Certificate of Merger.
8.2 To the extent that any provision of this Certificate of Merger is inconsistent with or conflicts with any provision of the Offer Agreement, the provisions of this Certificate of Merger shall govern and control with respect to the matters set forth herein.
8.3 This Certificate of Merger shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws principles thereof that would result in the application of the laws of any other jurisdiction.
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SIGNATURE PAGE TO CERTIFICATE OF MERGER
IN WITNESS WHEREOF, Torchlight Mining Corp. has caused this Certificate of Merger to be duly executed by its duly authorized officer on this 16th day of July, 2024.
TORCHLIGHT MINING CORP.
By: ________
Name: Henrik Aldermann
Title: Chief Executive Officer
Date: July 16, 2024
Prepared and filed by:
Calderwood & Harkness LLP 900 Third Avenue, 28th Floor New York, New York 10022
Attention: Beatrice Holloway, Partner
Contact: Derek Okonkwo, Associate Telephone: (212) 555-0147