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 5, 2015
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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15950 N. Dallas Parkway, Ste 400, Dallas, Texas, 75248
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (214) 299-7660
(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):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement
Effective May 5, 2015, Sky Petroleum, Inc.. (the “Company”) entered into a Note Purchase Agreement (“Note Purchase Agreement”) with an accredited investor (as defined under Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as amended (the “U.S. Securities Act”) outside the United States, in connection with the sale of a Convertible Promissory Note, due May 5, 2017 (the “Note”), in the principal amount of US$500,000. The Note is convertible into shares of common stock of the Company (“Common Shares”) at a conversion price of US$0.08 per share (the “Conversion Price”). The Note Purchase Agreement contained customary representations and warranties. The foregoing description of the Note Purchase Agreement is qualified in its entirety by reference to the full-text of the agreement, a copy of which is filed as Exhibit 10.1.
Item 2.03. Creation of a Direct Financial Obligation
Effective May 5, 2015, the Company issued a Note, due May 5, 2017, in the principal amount of US$500,000 under the terms of the Note Purchase Agreement. Principal and accrured interest under the Notes are due and payable on May 5, 2017 (the “Maturity Date”). The Note is convertible into Common Shares at the Conversion Price. Interest on the Note shall accrue at a rate equal to three percent (3%) per annum and interest on the Notes is payable on the Maturity Date in cash or, at the option of the Company, in-kind in shares of common stock of the Company at the Conversion Price.
Default Interest shall increase to six percent (6%) per annum commencing immediately upon an Event of Default. Default Interest shall be paid in cash. An “Event of Default” is deemed to occur upon:
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(a)
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failure to pay principal and interest on any of the Notes when due;
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(b)
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proceedings are commenced for the winding-up, liquidation or dissolution of the Company, unless the Company in good faith actively and diligently contests such proceedings, decree, order or approval, resulting in a dismissal or stay thereof within 60 days of commencement;
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(c)
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a decree or order of a court of competent jurisdiction is entered adjudging the Company to be bankrupt or insolvent, or a petition seeking reorganization, arrangement or adjustment of or in respect of the Company is approved under applicable law relating to bankruptcy, insolvency or relief of debtors;
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(d)
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the Company makes an assignment for the benefit of its creditors, or petitions or applies to any court or tribunal for the appointment of a receiver or trustee for itself or any substantial part of its property, or commences for itself or acquiesces in any proceeding under any bankruptcy, insolvency, reorganization, arrangement or readjustment of debt law or statute or any proceeding for the appointment of a receiver or trustee for itself or any substantial part of its property, or suffers any such receivership or trusteeship; or
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(e)
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a resolution is passed for the winding-up or liquidation of the Company.
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The Holder shall have the right, at its sole option, to declare this Note immediately due and payable, irrespective of the stated Maturity Date, upon an Event of Default.
The foregoing description of the Notes is qualified in its entirety by reference to the full-text of the agreement, a copy of which is filed as Exhibit 10.2.
Item 3.02. Unregistered Sales of Equity Securities
The Note was offered by the Company in a non-brokered private placement to a non-U.S. person outside of the United States in an off-shore transaction. The Note was not registered under the U.S. Securities Act, or the laws of any state of the United States, and the Note, and Common Shares issuable upon conversion, are “restricted securities” (as defined in Rule 144(a)(3) of the Securities Act). The Note may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the U.S. Securities Act. The Note was placed pursuant to exclusions from the registration requirements of the U.S. Securities Act pursuant to Rule 903 thereunder, such exclusions being available based on information obtained from the investor.
Item 9.01 Exhibits.
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Exhibit
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Description
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10.1
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Form of Note Purchase Agreement
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10.2
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Form of Convertible Promissory Note
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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SKY PETROLEUM, INC.
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May 8th, 2015
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By: |
/s/ Karim Jobanputra |
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Karim Jobanputra |
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Chief Executive Officer
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Exhibit
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Description
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10.1
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Form of Note Purchase Agreement
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10.2
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Form of Convertible Promissory Note
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EXHIBIT 10.1
THIS NOTE PURCHASE AGREEMENT (THE "AGREEMENT") RELATES TO AN OFFERING OF NOTES IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT").
NONE OF THE CONVERTIBLE NOTES (OR THE SECURITIES ISSUABLE UPON CONVERSION OF SUCH NOTES) TO WHICH THIS AGREEMENT RELATES HAVE BEEN OR WILL BE REGISTERED UNDER THE U.S. SECURITIES ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE U.S. SECURITIES ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE U.S. SECURITIES ACT.
NOTE PURCHASE AGREEMENT
(Non U.S. Lenders)
Purchase of
Convertible Promissory Notes
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TO:
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SKY PETROLEUM, INC. (the “Company”)
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Attn: Karim Jobanputra, Chief Executive Officer
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15950 N. Dallas Parkway, Ste 400
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WHEREAS, the Company is offering Convertible Promissory Notes (the “Notes”), to raise up to US$1,500,000 under the terms set forth in this agreement (the “Offering”); and
WHEREAS, the undersigned desires to lend the Company funds in consideration for Notes in the principal amount of such loan.
AGREEMENT
1.1 The undersigned (the “Lender”) hereby irrevocably agrees to purchase from SKY PETROLEUM, INC. Notes in the aggregate principal amount set forth in “Aggregate Purchase Amount” below (the “Principal Amount”). The Notes are convertible, at any time at the option of the holder, into shares of common stock of the Company (“Common Shares”) at the conversion price of US$0.08 per share (the “Conversion Price”). The Notes will bear interest at the rate of 3% per annum, payable in cash or in-kind in Common Shares at the Conversion Price. The Principal Amount and
accrued and unpaid interest on the Notes will due and payable two years from the issuance date (the “Maturity Date”)..
1.2 The Notes will be in substantially the form attached hereto as Exhibit A (the “Note Certificates”).
1.3 The Company hereby irrevocably agrees to sell, on the basis of the representations and warranties and subject to the terms and conditions set forth herein, to the Lender the Notes. Subject to the terms hereof, the purchase will be effective upon its acceptance by the Company.
1.4 Unless otherwise provided, all dollar amounts referred to in this Agreement are in lawful money of the United States of America.
1.5 The Lender acknowledges that this Agreement forms part of an offering of Notes in the aggregate amount of up to US$1,500,000 (the “Offering”). There is no minimum amount for the Offering and the Company may elect to terminate the Offering at any time.
2.1 The Aggregate Purchase Amount must accompany this Agreement and shall be wired directly to the Company in accordance with the wire instructions provided by the Company.
2.2 Closing of the initial offering of the Notes (the "Closing") shall take place at the offices of the Company (at the address set forth above), at (a) 5:00 p.m., Dallas, Texas time on May 5, 2015; or (b) at such other time and place or on such date as the Lenders and the Company may agree upon.
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3.
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ACKNOWLEDGEMENTS OF LENDER
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3.1 The Lender acknowledges, represents, warrants and agrees that:
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(a)
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neither the Notes nor the Common Shares issuable upon conversion or paid as in-kind dividends have been or will be registered under the U.S. Securities Act, or under any state securities or "blue sky" laws of any state of the United States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to U.S. Persons, as that term is defined in Regulation S under the U.S. Securities Act ("Regulation S"), except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the U.S. Securities Act, or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the U.S. Securities Act and in each case only in accordance with applicable state and provincial securities laws;
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(b)
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the Lender has carefully read this Agreement;
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(c)
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Lender has assessed and considered the economic consequences of the purchase of the Notes with its attorney and/or other financial advisor, as the Lender determined necessary, and was afforded access to the books and records of the Company, conducted an independent investigation of the business of the Company, and was fully familiar with the financial affairs of the Company. Lender consulted its counsel with respect to the U.S. Securities Act and applicable federal and state securities laws. The Company has not provided the Lender with any representations, statements, or warranties as to the Securities. Lender has reviewed and had access to the Company’s periodic public filings
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with the United States Securities and Exchange Commission (“the “SEC”) available electronically on EDGAR at www.sec.gov;
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(d)
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Lender has been advised that (i) the Company has not filed its annual report for the year ended December 31, 2014 on Form 10-K with the SEC; (ii) its common shares are currently quoted for trading on the OTC-Pink; and (iii) the Company is subject to an arbitration ruling in favor of National Agency of Natural Resources of Albania;
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(e)
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the books and records of the Company were available, subject to certain confidentiality restrictions, to the Lender and all documents, records and books in connection with the sale of the Notes hereunder have been made available for inspection by the Lender, the Lender's attorney and/or advisor(s);
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(f)
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the Lender will indemnify and hold harmless the Company and, where applicable, its respective directors, officers, employees, agents, advisors and shareholders from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Lender contained herein or in any document furnished by the Lender to the Company in connection herewith being untrue in any material respect or any breach or failure by the Lender to comply with any covenant or agreement made by the Lender to the Company in connection therewith;
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(g)
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the Lender has been advised to consult the Lender's own legal, tax and other advisors with respect to the merits and risks of an investment in the Securities and with respect to applicable resale restrictions, and it is solely responsible (and the Company is not in any way responsible) for compliance with:
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(i)
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any applicable laws of the jurisdiction in which the Lender is resident in connection with the distribution of the Securities hereunder, and
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(ii)
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applicable resale restrictions;
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(h)
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the Lender has the requisite knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Notes and the Company;
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(i)
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the Lender has not acquired the Notes as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the U.S. Securities Act) in the United States in respect of any of the Notes which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Notes; provided, however, that the Lender may sell or otherwise dispose of any of the Notes pursuant to registration of any of the securities pursuant to the U.S. Securities Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein;
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(j)
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the Notes and the Common Shares issuable upon conversion or paid as in-kind dividends will be restricted securities as defined in Rule 144(a)(3) and certificates representing such securities will bear an appropriate restrictive legend to such effect;
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(k)
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the Lender is not a U.S. person (as defined in Regulation S under the U.S. Securities Act); the Lender was outside the United States when receiving and executing this Agreement and the Lender is acquiring the Notes as principal for its own account, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part, and no other person has a direct or indirect beneficial interest in such Notes;
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(l)
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there is no government or other insurance covering any of the Notes, and the Notes are unsecured obligations of the Company; and
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(m)
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this Agreement is not enforceable by the Lender unless it has been executed and delivered by the Company.
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4.
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ACKNOWLEDGEMENT OF THE COMPANY
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4.1 The Company acknowledges, represents, warrants and agrees that:
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(a)
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each of the Company and each of its subsidiaries is a valid and subsisting corporation duly incorporated and in good standing under the laws of its jurisdiction of incorporation;
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(b)
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each of the Company and each of its subsidiaries is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction;
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(c)
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the issue and sale of the Notes and the Common Shares issuable upon conversion or paid as in-kind dividends by the Company do not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any material agreement or instrument to which the Company is a party;
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(d)
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there are no legal or governmental actions, suits, proceedings or investigations pending or, to the Company’s knowledge, threatened, to which the Company or any of its subsidiaries is or may be a party or of which property owned or leased by the Company or any of its subsidiaries is or may be the subject, or related to environmental, title, discrimination or other matters, which actions, suits, proceedings or investigations, individually or in the aggregate, could have a material adverse effect on the Company;
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(e)
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there are no judgments against the Company or any of its subsidiaries, if any, which are unsatisfied, nor is the Company or any of its subsidiaries, if any, subject to any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental body;
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(f)
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this Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law; and
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(g)
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neither the Company nor any of its affiliates, nor any person acting on its or their behalf (i) has made or will make any “directed selling efforts” (as such term is defined in Regulation S of the U.S. Securities Act) in the United States, or (ii) has engaged in or will engage in any form of “general solicitation” or “general advertising” (as such terms are defined in Rule 502(c) under Regulation D of the U.S. Securities Act) in the United States with respect to offers or sales of the Notes.
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5.
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ACKNOWLEDGEMENT AND WAIVER
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5.1 The Lender has acknowledged that the decision to purchase the Notes was solely made on the basis of publicly available information. The Lender hereby waives, to the fullest extent permitted by law, any rights of withdrawal, rescission or compensation for damages to which the Lender might be entitled in connection with the distribution of any of the Notes.
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6.
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COLLECTION OF PERSONAL INFORMATION
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6.1 The Lender acknowledges and consents to the fact that the Company is collecting the Lender’s personal information for the purpose of fulfilling this Agreement and completing the Offering. The Lender's personal information (and, if applicable, the personal information of those on whose behalf the Lender is contracting hereunder) may be disclosed by the Company to (a) stock exchanges or securities regulatory authorities, (b) the Company's registrar and transfer agent, (c) tax authorities, (d) authorities pursuant to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT ACT) and (e) any of the other parties involved in the Offering, including legal counsel, and may be included in record books in connection with the Offering. By executing this Agreement, the Lender is deemed to be consenting to the foregoing collection, use and disclosure of the Lender's personal information (and, if applicable, the personal information of those on whose behalf the Lender is contracting hereunder) and to the retention of such personal information for as long as permitted or required by law or business practice. Notwithstanding that the Lender may be purchasing Notes as agent on behalf of an undisclosed principal, the Lender agrees to provide, on request, particulars as to the identity of such undisclosed principal as may be required by the Company in order to comply with the foregoing.
7.1 The Lender acknowledges and agrees that all costs and expenses incurred by the Lender (including any fees and disbursements of any special counsel retained by the Lender) relating to the purchase of the Notes shall be borne by the Lender.
8.1 This Agreement shall be binding upon the parties hereto, their heirs, executors, successors, and legal representatives. The laws of the State of Texas, Dallas County, shall govern the rights of the parties as to this Agreement without regard to principles of conflicts of laws that would direct the application of laws of another jurisdiction.
8.2 Each of the Parties irrevocably submits and attorns to the exclusive jurisdiction and venue of the federal courts of the United States with jurisdiction over matters in the State of Texas, Dallas County, and irrevocably waives any objection, including any claim of inconvenient forum.
9.1 This Agreement, including without limitation the representations, warranties and covenants contained herein, shall survive and continue in full force and effect and be binding upon the parties hereto notwithstanding the completion of the purchase of the Notes by the Lender pursuant hereto.
10.1 This Agreement is not transferable or assignable.
11.1 The Company shall be entitled to rely on delivery by facsimile machine of an executed copy of this Agreement and acceptance by the Company of such facsimile copy shall be equally effective to create a valid and binding agreement between the Lender and the Company in accordance with the terms hereof.
12.1 The invalidity or unenforceability of any particular provision of this Agreement shall not affect or limit the validity or enforceability of the remaining provisions of this Agreement.
13.1 Except as expressly provided in this Agreement and in the agreements, instruments and other documents contemplated or provided for herein, this Agreement contains the entire agreement between the parties with respect to the sale of the Securities and there are no other terms, conditions, representations or warranties, whether expressed, implied, oral or written, by statute or common law, by the Company or by anyone else.
14.1 All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Lender and the Company shall be directed to it at the respective address in this Agreement.
15.1 This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall constitute an original and all of which together shall constitute one instrument.
[Signature Page Follows]
IN WITNESS WHEREOF the Lender has duly executed this Agreement as of the date of acceptance by the Company.
Please print all information (other than signatures), as applicable, in the space provided below
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________________________________________________
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Principal Amount of Notes:
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(Name of Lender)
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=
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Account Reference (if applicable):
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By: ____________________________________________
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Aggregate Purchase Amount:
(insert total investment amount in US$)
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Authorized Signature
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________________________________________________
(Official Capacity or Title – if the Lender is not an individual)
________________________________________________
(Name of individual whose signature appears above if different than the name of the Lender printed above.)
________________________________________________
(Lender’s Address, including Municipality and Province)
________________________________________________
S.I.N. or Taxation Account of Lender
________________________________________________
(Telephone Number) (Email Address)
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If the Lender is signing as agent for a principal (beneficial purchaser) and is not purchasing as trustee or agent for accounts fully managed by it, complete the following:
________________________________________________
(Name of Principal)
________________________________________________
(Principal’s Address)
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Account Registration Information:
________________________________________________
(Name)
________________________________________________
(Account Reference, if applicable)
________________________________________________
(Address, including Postal Code)
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Delivery Instructions as set forth below:
________________________________________________
(Name)
________________________________________________
(Account Reference, if applicable)
________________________________________________
(Address)
________________________________________________
(Contact Name) (Telephone Number)
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A C C E P T A N C E
The above-mentioned Agreement in respect of the Notes is hereby accepted by SKY PETROLEUM, INC.
DATED at ________________________________________, the _______ day of __________________, 2015.
SKY PETROLEUM, INC.
Per: _______________________________________________
Authorized Signatory
Exhibit A
FORM OF NOTE CERTIFICATE
EXHIBIT 10.2
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH U.S. SECURITIES LAWS.
SKY PETROLEUM, INC.
Attn: Karim Jobanputra, Chief Executive Officer
15950 N. Dallas Parkway, Ste 400
Dallas, Texas 75248
CONVERTIBLE PROMISSORY NOTE
Due [__], 2017
| No: 2015 Series A Convertible Note – 001A |
Issue Date: [__], 2015 |
| US$[Principal Amount] |
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For value received, SKY PETROLEUM, INC., a Nevada corporation (the “Company”), promises to pay to [Holder] (Address) (the “Holder”), the principal sum of US$[_________], on [__], 2017 (the “Stated Maturity Date”), unless payable earlier under the terms set forth in Section 1.
This Note is subject to the following terms and conditions.
1. Maturity and Interest.
(a) This Note will automatically mature and be due and payable at 5:00 p.m. (CDT), on the Stated Maturity Date, [__], 2017.
(b) Interest shall accrue from [__], 2015 on the unpaid principal amount at a rate equal to Three percent (3%) per annum, payable at 5:00 p.m. (CDT), on the Stated Maturity Date, [__], 2017. Interest will be paid in cash or, at the option of the Company, in-kind in Common Stock (issuable at the Conversion Price, as defined below) on the Stated Maturity Date.
(c) Default Interest shall increase to six percent (6%) per annum commencing immediately upon an Event of Default. Default Interest shall be paid in cash.
(d) The entire principal amount and accrued and unpaid interest on this Note may be prepaid in full at anytime by the Company without penalty or prepayment fees.
(e) The principal amount and Interest will be payable in lawful money of United States at such place as the Holder hereof may from time to time designate in writing to the Company.
2. Conversion.
(a) This Note shall be convertible at any time, in whole or in part, at the option of the Holder, into such number of fully paid and nonassessable shares of Common Stock of the Company (“Common Stock”), at the conversion price of US$0.08 per share of Common Stock (the “Conversion Price”).
(b) The Conversion Price shall be subject to the following adjustments from time to time:
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(i)
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If the Company at any time divides the outstanding shares of its Common Stock into a greater number of shares (whether pursuant to a stock split, stock dividend or otherwise), and conversely, if the outstanding shares of its Common Stock are combined into a smaller number of shares, the conversion price in effect immediately prior to such division or combination shall be proportionately adjusted to reflect the reduction or increase in the value of each such common share.
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(ii)
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If any capital reorganization or reclassification of the capital stock of the Company, or consolidation or merger of the Company with another corporation, or the sale of all or substantially all of its assets to another corporation shall be effected in such a way that holders of the Company’s Common Stock shall be entitled to receive stock, securities or assets with respect to or in exchange for such Common Stock, then, as a condition of such reorganization, reclassification, consolidation, merger or sale, Holder shall have the right to purchase and receive upon the basis and upon the terms and conditions specified in this Note and in lieu of the shares of the Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented hereby, such shares of stock, other securities or assets as would have been issued or delivered to Holder if Holder had exercised this Note and had received such shares of Common Stock immediately prior to such reorganization, reclassification, consolidation, merger or sale. The Company shall not effect any such consolidation, merger or sale unless prior to the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger or the corporation purchasing such assets shall assume by written instrument executed and mailed to the Holder at the last address of the Holder appearing on the books of the Company the obligation to deliver to the Holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, the Holder may be entitled to purchase.
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(c) No fractional shares of the Company’s capital stock will be issued upon conversion of this Note. In lieu of any fractional share to which the Holder would otherwise be entitled, the Company will pay to the Holder in cash the amount of the unconverted principal and interest balance of this Note that would otherwise be converted into such fractional share. Upon conversion of this Note pursuant to this Section 2, the Holder shall surrender this Note, duly endorsed, at the principal offices of the Company or any transfer agent of the Company. At its expense, the Company will, as soon as practicable thereafter, issue and deliver to such Holder, at such principal office, a certificate or certificates for the number of shares to which such Holder is entitled upon such conversion, together with any other securities and property to which the Holder is entitled upon such conversion under the terms of this Note, including a check payable to the Holder for any cash amounts payable as described herein. Upon conversion of this Note and the deliveries required pursuant to this Section 2 in connection with such conversion, the Company will be forever released from all of its obligations and liabilities under this Note with regard to that portion of the principal amount and accrued interest being converted including without limitation the obligation to pay such portion of the principal amount and accrued interest.
Notwithstanding any other provision hereof, no Holder shall convert this Note or any portion thereof, if as a result of such conversion the holder would then become a “beneficial owner” (as determined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of 9.99% or more of the issued and outstanding Common Stock. For greater certainty, the Note shall not be
convertible by the Holder to the extent that, if, after giving effect to such conversion, the holder of such securities, together with its affiliates, would in aggregate beneficially own, or exercise control or direction over that number of voting securities of the Company which is 9.99% or greater of the total issued and outstanding voting securities of the Company, immediately after giving effect to such conversion. Any Holder may waive this provision upon providing the Company 61 days written notice.
3. Event of Default. Each of the following events shall be an “Event of Default” in respect of the Notes:
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(a)
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failure to pay principal and interest on any of the Notes when due;
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(b)
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proceedings are commenced for the winding-up, liquidation or dissolution of the Company, unless the Company in good faith actively and diligently contests such proceedings, decree, order or approval, resulting in a dismissal or stay thereof within 60 days of commencement;
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(c)
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a decree or order of a court of competent jurisdiction is entered adjudging the Company to be bankrupt or insolvent, or a petition seeking reorganization, arrangement or adjustment of or in respect of the Company is approved under applicable law relating to bankruptcy, insolvency or relief of debtors;
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(d)
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the Company makes an assignment for the benefit of its creditors, or petitions or applies to any court or tribunal for the appointment of a receiver or trustee for itself or any substantial part of its property, or commences for itself or acquiesces in any proceeding under any bankruptcy, insolvency, reorganization, arrangement or readjustment of debt law or statute or any proceeding for the appointment of a receiver or trustee for itself or any substantial part of its property, or suffers any such receivership or trusteeship; or
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(e)
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a resolution is passed for the winding-up or liquidation of the Company.
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The Holder shall have the right, at its sole option, to declare this Note immediately due and payable irrespective of the Stated Maturity Date specified herein, upon an Event of Default.
4. Change of Control. The Holder shall have the right, at its sole option, to declare this Note immediately due and payable irrespective of the Maturity Date specified herein, ten business days prior to the effective date of any Change of Control Transaction undertaken without the prior written consent of the Holder, which consent the Holder shall have no obligation to give. A “Change of Control Transaction” means (i) any sale of equity securities or securities convertible into equity securities of the Company; (ii) any merger, consolidation, statutory share exchange or acquisition transaction involving the Company or any material subsidiary of the Company; (iii) any sale of substantially all of the assets of the Company or any material subsidiary of the Company; or (iv) any similar transaction involving the issuance, cancellation or restructuring of equity securities of the Company unless, following the completion of such transaction, the then existing shareholders of Company own or control, directly or indirectly, at least 50% of the voting power or liquidation rights of Company or the successor of such merger, consolidation or statutory share exchange. In the event of a contemplated Change of Control Transaction, the Company shall provide the Holder at least Fifteen business days prior to the effective date of any Change of Control Transaction, except as may otherwise be prohibited by law.
5. Transfer; Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. This Note may be transferred, or divided into two or more Notes of smaller denomination, subject to the following conditions. The Holder, by acceptance hereof, agrees to give written notice to the Company before transferring this Note of such Holder’s intention to do so, describing briefly the manner of the proposed transfer. Promptly upon receiving such written notice, the Company shall present copies thereof to the Company’s counsel. If in the opinion of the Company’s counsel the proposed transfer may be effected without constituting a violation of the applicable U.S. state or federal securities laws, then the Company, as promptly as practicable, shall notify the Holder of such opinion, whereupon the Holder shall be entitled to transfer this Note, provided that an appropriate legend may be endorsed on this Note respecting restrictions upon transfer thereof necessary or advisable in the opinion of counsel satisfactory to the Company to prevent further transfers which would be in violation of such securities laws or adversely affect the exemptions relied upon by the Company. To such effect, the Company may request that the intended transferee execute an investment letter satisfactory to the Company and its counsel.
6. Governing Law. This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Texas, Dallas County, without giving effect to principles of conflicts of law. The Holder irrevocably submits and attorns to the exclusive jurisdiction and venue of the federal courts of the United States with jurisdiction over matters in the State of Texas, Dallas County, and irrevocably waives any objection, including any claim of inconvenient forum
7. Notices. Any notice required or permitted by this Note shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by a nationally-recognized delivery service (such as Federal Express or UPS), or seventy-two (72) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth herein or as subsequently modified by written notice.
8. Amendments and Waivers. Any term of this Note may be amended only with the written consent of the Company and the Holder and under the terms and conditions set forth in the Inter-Creditor Agreement. Any amendment or waiver effected in accordance with this Section 8 and the Inter-Creditor Agreement shall be binding upon the Company, the Holder and each transferee of the Note.
Company hereby waives presentment for payment, notice of dishonor, protest and notice of protest. If this Note is not paid when due, the Company agrees to pay all costs of collection, including reasonable attorneys’ fees.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
[SIGNATURE PAGE]
IN WITNESS WHEREOF THE PARTIES HAVE DULY EXECUTED AND ACCEPTED THIS CONVERTIBLE PROMISSORY NOTE.
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SKY PETROLEUM, INC. |
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____________________________________ |
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By: |
Karim Jobanputra |
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Its: |
Chief Executive Officer |
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SKY PETROLEUM, INC. |
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Attn: Karim Jobanputra, Chief Executive Officer |
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15950 N. Dallas Parkway, Ste 400 |
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Dallas, Texas 75248
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HOLDER |
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______________________________________________ |
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______________________________________________ |
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Name |
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______________________________________________ |
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Address |
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
_________________________________________________________________________________
Name
_________________________________________________________________________________
Address
_________________________________________________________________________________
Social Insurance Number, Social Security Number or Tax Identification Number
US$____________ of the principal amount of Promissory Note, due [__], 2017 (the “Note”), registered in the name of the undersigned represented by the within certificate and do hereby irrevocably constitute and appoint ___________ attorney to transfer the said Note on the books of the Company with full power of substitution in the premises.
The undersigned understands that, as a condition to any transfer of a Note, the Company may request a legal opinion, in form and substance reasonably satisfactory to the Company and its legal counsel, stating that such transfer is exempt from the registration requirements of the Securities Act of 1933, as amended.
DATED the ______ day of ________, 20___.
Signature of Transferor:
____________________________
(Signature of Transferor)
Guaranteed by:
____________________________
Authorized Signature Number
NOTICE:
The signature to this transfer must correspond in every particular with the name as shown on the face of this certificate and the endorsement must be signature guaranteed, in either case, by a Chartered Bank, or by a medallion signature guarantee from a member recognized under the Signature Medallion Guarantee Program or from a similar entity in the United States. The stamp affixed thereon by the guarantor must bear the actual words “signature guarantee”, OR “signature medallion guarantee” or in accordance with industry standards.
CONVERSION FORM
TO: SKY PETROLEUM, INC. (the “Company”)
The undersigned hereby exercises the right to convert US$____________ of the principal amount of Convertible Note, due [__], 2017 (the “Note”), registered in the name of the undersigned represented by the within certificate, into shares of common stock in the capital of the Company (“Common Stock”) at the conversion price of US$0.08 per share.
The undersigned holder understands that unless the Common Stock issuable upon the conversion of the Note are registered under the United States Securities Act of 1933, as amended, and the securities laws of all applicable states of the United States and the undersigned has provided a written opinion of counsel satisfactory to the Company to such effect, the certificate representing the Common Stock issued upon Conversion of this Note will bear the following restrictive legend:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) IF THE SECURITIES HAVE BEEN REGISTERED IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT IN ACCORDANCE WITH RULE 144 THEREUNDER, IF APPLICABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE CORPORATION AN OPINION OF COUNSEL OF RECOGNIZED STANDING, OR OTHER EVIDENCE OF EXEMPTION, REASONABLY SATISFACTORY TO THE CORPORATION. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH U.S. SECURITIES LAWS”.
If the full principal amount of the Note represented by the Note certificate is not being converted, a new Note certificate will be issued and delivered with the Common Share certificates.
Please issue a certificate for the Common Stock being purchased as follows in the name of the undersigned.
DATED at ______________________________ this _________ day of _________________, ______.
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Signature Witnessed (see instructions to Holder)
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Signature of Holder (to be the same as appears on the face of the Note Certificate) or authorized signing officer if a corporation
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Name of Note Holder:
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_________________________________________ |
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Address (please print):
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_________________________________________ |
INSTRUCTIONS TO HOLDERS
TO CONVERT:
To convert the Note, the Note Holder must complete, sign and deliver the Conversion Form, and deliver the Note Certificate(s) to SKY PETROLEUM, INC. (the “Company”) at the address set forth below indicating the principal amount of the Note converted and the number of Common Stock to be acquired. In such case, the signature of such registered holder on the Conversion Form must be witnessed.
GENERAL:
For the protection of the Holder, it would be prudent to use registered mail if forwarding documents by mail.
If the Conversion Form is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the Note Certificate must also be accompanied by evidence of authority to sign satisfactory to the Company.
The address of the Company is:
SKY PETROLEUM, INC.
Attn: Karim Jopbanputra, Chief Executive Officer
15950 N. Dallas Parkway, Ste 400
Dallas, Texas 75248
Sky Petroleum (CE) (USOTC:SKPI)
과거 데이터 주식 차트
부터 12월(12) 2024 으로 1월(1) 2025
Sky Petroleum (CE) (USOTC:SKPI)
과거 데이터 주식 차트
부터 1월(1) 2024 으로 1월(1) 2025
