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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):
FEBRUARY 16, 2024
_______________________________
EMPIRE
PETROLEUM CORPORATION
(Exact name of registrant as specified in its charter)
_______________________________
| Delaware |
001-16653 |
73-1238709 |
| (State or Other Jurisdiction |
(Commission |
(I.R.S. Employer |
| of Incorporation) |
File Number) |
Identification No.) |
2200
S. Utica Place, Suite 150,
Tulsa Oklahoma
74114
(Address of Principal
Executive Offices) (Zip Code)
Registrant’s
telephone number, including area code: (539) 444-8002
(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:
| ☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Stock $.001 par value
|
EP
|
NYSE
American
|
Indicate by check mark whether the
registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item
1.01 | Entry
into a Material Definitive Agreement. |
On February 16, 2024, Empire Petroleum
Corporation (the “Company”) issued that certain Promissory Note in the aggregate principal amount of $5,000,000 (the “Note”)
to Energy Evolution Master Fund, Ltd., a Cayman Islands exempted company (“Energy Evolution”). As of February 16, 2024,
Energy Evolution has advanced the Company $2,500,000 under the Note. From time to time after February 16, 2024 and for a period
of three months thereafter, upon at least ten business days prior written notice, Energy Evolution will advance up to another $2,500,000
to the Company, provided that no Event of Default (as defined in the Note) has occurred or is continuing. The proceeds of the Note will
be used by the Company to fund, in part, its ongoing oil and gas drilling program and for working capital purposes.
The Note matures on February 15, 2026 (the
“Maturity Date”) and accrues interest at the rate of 7% per annum. After the Maturity Date, any principal balance of the
Note remaining unpaid accrues interest at the rate of 9% per annum. At the option of Energy Evolution, interest payments will be paid
either in cash or in shares of common stock of the Company on each of the following dates (or if any such date is not a business day,
the next following business day) (each an “Interest Payment Date”), except upon the occurrence of an Event of Default, in
which case interest will accrue and be paid in cash on demand: (i) March 31, 2024; (ii) June 30, 2024; (iii) September 30,
2024; (iv) December 31, 2024; (v) March 31, 2025; (vi) June 30, 2025; (vii) September 30, 2025; (viii) December 31,
2025; and (ix) the Maturity Date. All or any portion of the outstanding principal amount of the Note may be converted into shares of
common stock of the Company at a conversion price of $6.25 per share (the “Conversion Price”), at the option of Energy Evolution,
at any time and from time to time. If the full principal amount of the Note is drawn and converted into shares of common stock of the
Company, 800,000 shares would be issued (without giving effect to any interest that may be converted). Accrued interest on the principal
amount converted will be due on the applicable date of conversion in cash or, at the option of Energy Evolution, by issuance of shares
of common stock of the Company in the manner set forth in the Note (where the date of conversion is the relevant Interest Payment Date”).
The Conversion Price is subject to customary adjustments. The Note may be prepaid at any time or from time to time without the consent
of Energy Evolution and without penalty or premium, provided that the Company provides Energy Evolution with at least five business days
prior written notice, each principal payment is made in cash and all accrued interest is paid in cash, or at the option of Energy Evolution,
by issuance of shares of common stock of the Company in the manner set forth in the Note (where the Interest Payment Date is the date
of prepayment).
For a description of any material relationship
between the Company and Energy Evolution, see the Company’s definitive proxy statement for its 2023 Annual Meeting of Stockholders
filed with the Securities and Exchange Commission (the “SEC”) on May 1, 2023, the Company’s Form 10-Q for the quarter
ended September 30, 2023 filed with the SEC on November 13, 2023 and the Company’s Current Report on Form 8-K filed with
the SEC on November 29, 2023.
The foregoing summary of the Note is qualified
in its entirety by reference to the full terms and conditions of the Note, a copy of which is filed as Exhibit 10 to this Current Report
on Form 8-K and is incorporated by reference into this Item 1.01.
| Item
2.03 | Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
of a Registrant. |
The information
set forth under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
| Item
3.02 | Unregistered Sales of Equity Securities. |
The information set forth under Item 1.01 of this Current Report on Form
8-K is incorporated by reference into this Item 3.02. The issuance of the Note was not registered under the Securities Act of 1933, as
amended, in reliance upon the exemption from the registration requirements of that Act provided by Section 4(a)(2) thereof. Energy Evolution
is a sophisticated accredited investor with the experience and expertise to evaluate the merits and risks of an investment in securities
of the Company and the financial means to bear the risks of such an investment.
| Item
9.01 | Financial
Statements and Exhibits. |
| (d) | | Exhibits. |
| | | |
| The following exhibits are filed or furnished herewith. |
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.
| |
EMPIRE
PETROLEUM CORPORATION
|
|
| Date:
February 21, 2024 |
By: |
/s/ Michael
R. Morrisett |
|
| |
|
Michael
R. Morrisett
President
and Chief Executive Officer |
|
4
EXHIBIT
10
THIS
NOTE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
| $5,000,000 |
|
Original
Issue Date: February 16, 2024 |
Empire
Petroleum Corporation
PROMISSORY NOTE DUE February 15, 2026
THIS
NOTE of Empire Petroleum Corporation, a Delaware corporation (the “Company”), dated February 16, 2024 (the “Original
Issue Date”), is designated as Promissory Note due February 15, 2026, in the original aggregate principal amount of Five Million
Five Dollars ($5,000,000) (this “Note”).
FOR
VALUE RECEIVED, the Company promises to pay to the order of Energy Evolution Master Fund, Ltd., a Cayman Islands exempted company, or
its registered assigns (the “Investor”), the principal sum of Five Million Dollars ($5,000,000) or such lesser amount
that may be advanced by the Investor to the Company hereunder, plus any and all accrued but unpaid interest thereon, in cash on February
15, 2026 (subject to Section 11, the “Maturity Date”). This Note is subject to the following additional provisions:
1.
Advances. As of the Original Issue Date, the
Investor has advanced the Company an amount equal to Two Million Five Hundred Thousand Dollars ($2,500,000) under this Note. From time
to time from the date of the Original Issue Date and for a period of three (3) months thereafter, upon at least ten (10) Business Days
prior written notice, the Investor shall advance up to another Two Million Five Hundred Thousand Dollars ($2,500,000) under this Note,
provided that no Event of Default has occurred or is continuing.
2.
Interest. The outstanding principal amount of
this Note shall accrue interest at the rate of 7% per annum until the Maturity Date. After the Maturity Date and upon the occurrence
and during the continuation of any Event of Default, any principal balance of the Note remaining unpaid shall bear interest at the rate
of 9% per annum. Accrued interest shall be calculated on the basis of a 360-day year for the actual number of days elapsed and shall
accrue daily commencing on the Original Issue Date and be compounded monthly on the first (1st) day of each calendar month.
At the option of the Investor, interest payments shall be paid either in cash or in shares of Empire Common Stock (as defined below)
(“Interest Shares”) on each of the following dates (or if any such date is not a Business Day, the next following
Business Day) (each, an “Interest Payment Date”), except upon the occurrence (and during the continuance) of an Event
of Default, in which case interest will accrue and be paid in cash on demand:
(a)
March 31, 2024;
(b)
June 30, 2024;
(c)
September 30, 2024;
(d)
December 31, 2024;
(e)
March 31, 2025;
(f)
June 30, 2025;
(g)
September 30, 2025;
(h)
December 31, 2025; and
(i)
the Maturity Date.
No
later than five (5) Business Days prior to each Interest Payment Date, the Investor shall send written notice to the Company of whether
it is electing to have the upcoming interest payment paid in cash or Interest Shares. The failure to send any such election shall be
deemed an election to be paid in Interest Shares. The Company covenants that all Interest Shares issued and delivered to the Investor
hereunder shall, upon issuance in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable
3.
Interest Shares. If so elected by the Investor
for any Interest Payment Date, the number of Interest Shares to be issued to the Investor on such Interest Payment Date shall be calculated
as follows:
IS = AI
/ 5WVAP;
where
| IS | = number
of Interest Shares (rounded up to the next whole number if a fraction); |
| AI | = aggregate
amount of accrued and unpaid interest on the Interest Payment Date; and |
| 5VWAP | = average
Daily VWAP for the five (5) Trading Days preceding the Interest Payment Date. |
4.
Certain Defined Terms.
(a)
“Business Day” means any day other than a Saturday, a Sunday, or any day on which the Federal Reserve Bank of New
York is closed.
(b)
“Close of Business” means 5:00 p.m., New York City time.
(c)
“Daily VWAP” means, for any Trading Day, the per share volume-weighted average price of the Empire Common Stock as
displayed under the heading “Bloomberg VWAP” on Bloomberg page “TELL <EQUITY> VAP” (or, if such page is
not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of
trading of the primary trading session on such Trading Day (or, if such volume-weighted average price is unavailable, the market value
of one share of Empire Common Stock on such Trading Day, determined, using a volume-weighted average price method, by a nationally recognized
independent investment banking firm selected by the Company). The Daily VWAP will be determined without regard to after-hours trading
or any other trading outside of the regular trading session.
(d)
“Empire Common Stock” means the common stock, $0.001 par value per share, of the Company.
(e)
“Event of Default” means (a) any failure of the Company to make any payment of interest or principal hereunder in
cash or by issuance of Interest Shares or Underlying Shares (as applicable) within two (2) Business Days of the date when due or (b)
any other material breach of the terms hereof by the Company which failure remains uncured within five (5) Business Days of notice by
the Investor to the Company.
(f)
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance,
levy, lien or charge of any kind, whether voluntarily incurred or arising by operation of law or otherwise, against any property, any
conditional sale or other title retention agreement, and any lease in the nature of a security interest.
(g)
“Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period
ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market
on which the Empire Common Stock is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason
of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Empire Common Stock or in any options
contracts or futures contracts traded on such exchange or market relating to the Empire Common Stock.
(h)
“Trading Day” means any day on which (i) trading in the Empire Common Stock generally occurs on the principal U.S.
national or regional securities exchange on which the Empire Common Stock is then listed or, if the Empire Common Stock is not then listed
on a U.S. national or regional securities exchange, on the principal other market on which the Empire Common Stock is then traded; and
(ii) there is no Market Disruption Event. If the Empire Common Stock is not so listed or traded, then “Trading Day” means
a Business Day.
5.
Timing; Status of Interest Shares; Listing. The
Company will deliver the Interest Shares due to the Investor on or before the Close of Business on the second (2nd) Business
Day immediately after the Interest Payment Date on which such interest is due. Each Interest Share delivered upon payment of interest
will be a newly issued or treasury share and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights
and free of any Lien or adverse claim (except to the extent of any Lien or adverse claim created by the action or inaction of the Investor).
If the Empire Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company
will cause each Interest Share, when issued, to be admitted for listing on such exchange or quotation on such system. Any Interest Shares
will be restricted securities and issued in the form of book-entries with the Company’s transfer agent. The person in whose name
any Interest Shares are issuable will be deemed to become the holder of record of such Interest Shares as of the Close of Business on
the date such interest is due, conferring, as of such time, upon such person, without limitation, all voting and other rights appurtenant
to such Interest Shares. The Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue of any
Interest Shares.
6.
Registration of the Note. The Company shall register
this Note upon records maintained by the Company for that purpose (the “Note Register”) in the name of the Investor.
The Company may deem and treat the registered Investor of this Note as the absolute owner hereof for the purpose of any payment of principal
hereof or interest hereon and for all other purposes, absent actual notice to the contrary from such record Investor.
7.
Registration of Transfers and Exchanges. The
Company shall register the transfer of any portion of this Note in the Note Register upon surrender of this Note to the Company at its
address for notice set forth herein. Upon any such registration or transfer, a new Note, in substantially the form of this Note (any
such new note, a “New Note”), evidencing the portion of this Note so transferred shall be issued to the transferee
and a New Note evidencing the remaining portion of this Note not so transferred, if any, shall be issued to the transferring Investor.
The acceptance of the New Note by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations
of a holder of a Note. No service charge or other fee will be imposed in connection with any such registration of transfer or exchange.
The Company agrees that its prior consent is not required for the transfer of any portion of this Note.
8.
Prepayment. The outstanding principal amount
of this Note may be prepaid at any time or from time to time, in each case together with all accrued and unpaid interest on the amount
prepaid through the date of prepayment (the “Pre-Payment Date”), without the consent of the Investor and without penalty
or premium, provided, however, that (i) Borrower must provide the Investor at least five (5) Business Days’ prior written notice
of any Pre-Payment Date, (ii) each principal prepayment shall be made in cash, and (iii) all accrued and unpaid interest thereon shall
be payable in cash, or at the option of the Investor, by issuance of Interest Shares in the manner set forth in Section 3 (where
the Interest Payment Date is the Pre-Payment Date).
9.
Optional Conversion of Principal.
(a)
All or any portion of the outstanding principal amount of this Note shall be convertible into shares of Common Stock at a price of Six
and 25/100 Dollars ($6.25) per share (the “Conversion Price”), at the option of the Investor, at any time and from
time to time. For the avoidance of doubt, any remaining unconverted principal amount remains payable in cash. The Investor may effect
conversions under this Section 9, by delivering to the Company a written notice in the form attached hereto as Exhibit A (each,
a “Conversion Notice”) together with a schedule in the form attached hereto as Schedule 1 (each, a “Conversion
Schedule”). With respect to each conversion hereunder, the date the applicable Conversion Notice together with the applicable
Conversion Schedule is delivered to the Company in accordance with this Section 9(a) is referred to herein as a “Conversion
Date.”
(b)
The number of shares issuable upon any conversion of principal hereunder (the “Underlying Shares”) shall equal the
outstanding principal amount of this Note to be converted divided by the Conversion Price. All accrued and unpaid interest on the principal
amount converted shall be due and payable on the applicable Conversion Date in cash or, at the option of the Investor, by issuance of
Interest Shares in the manner set out in Section 3 (where the Conversion Date is the relevant Interest Payment Date).
(c)
The Company shall, by the third Trading Day following a Conversion Date, issue or cause to be issued and delivered to or upon the written
order of the Investor and in such name or names as the Investor may designate a certificate for the Underlying Shares issuable upon such
conversion. Such certificate shall be issued with a restrictive legend if applicable. The Investor, or any person so designated by the
Investor to receive Underlying Shares, shall be deemed to have become holder of record of such Underlying Shares as of the applicable
Conversion Date.
(d)
The Investor shall not be required to deliver the original Note to the Company in order to effect a conversion hereunder. Execution and
delivery of the Conversion Notice shall have the same effect as cancellation of the Note and issuance of a New Note representing the
remaining outstanding principal amount.
(e)
Issuance of certificates for Underlying Shares upon conversion of (or otherwise in respect of) this Note shall be made without charge
to the Investor for any issue or transfer tax, withholding tax, transfer agent fee or other incidental tax or expense in respect of the
issuance of such certificate, all of which taxes and expenses shall be paid by the Company; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer involved in the registration of any certificates for Underlying
Shares or this Note in a name other than that of the Investor. The Investor shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Note or receiving Underlying Shares in respect hereof.
(f)
The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise
unreserved Common Stock, solely for the purpose of enabling it to issue Underlying Shares as required hereunder, the number of Underlying
Shares which are then issuable and deliverable upon the conversion of (and otherwise in respect of) the aggregate then-outstanding principal
amount of this Note (taking into account any applicable adjustments of Section 10). The Company covenants that all Underlying Shares
so issuable and deliverable shall, upon issuance in accordance with the terms hereof, be duly and validly authorized, issued and fully
paid and nonassessable.
10.
Certain Adjustments. The Conversion Price is
subject to adjustment from time to time as set forth in this Section 10. Paragraph (a) of this Section 10 shall in no way apply to any
rights offering or distribution of rights related to the Company’s Common Stock in the calendar year 2024.
(a)
Stock Dividends and Splits. If the Company, at any time while this Note is outstanding: (i) pays a stock dividend on its Common
Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, or (iii) combines outstanding shares of Common Stock into a smaller number of
shares, then in each such case the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately
after the record date for the determination of shareholders entitled to receive such dividend or distribution, and any adjustment pursuant
to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
(b)
Pro Rata Distributions. If the Company, at any time while this Note is outstanding, distributes to all holders of Common Stock
(i) evidences of its indebtedness, (ii) any security (other than a distribution of Common Stock covered by the preceding paragraph),
(iii) rights or warrants to subscribe for or purchase any security, or (iv) any other asset (in each case, “Distributed Property”),
then, at the request of the Investor delivered before the 90th day after the record date fixed for determination of shareholders entitled
to receive such distribution, the Company will deliver to the Investor, within five Trading Days after such request (or, if later, on
the effective date of such distribution), the Distributed Property that the Investor would have been entitled to receive in respect of
the Underlying Shares for which this Note could have been converted immediately prior to such record date. If such Distributed Property
is not delivered to the Investor pursuant to the preceding sentence, then upon any conversion of this Note that occurs after such record
date, the Investor shall be entitled to receive, in addition to the Underlying Shares otherwise issuable upon such conversion, the Distributed
Property that the Investor would have been entitled to receive in respect of such number of Underlying Shares had the Investor been the
record holder of such Underlying Shares immediately prior to such record date. Notwithstanding the foregoing, this Section 10(b) shall
not apply to any distribution of rights or securities in respect of adoption by the Company of a shareholder rights plan, which events
shall be covered by Section 10(a).
(c)
Fundamental Transactions. If, at any time while this Note is outstanding, (i) the Company effects any merger or consolidation
of the Company with or into another person, (ii) the Company effects any sale of all or substantially all of its assets in one or a series
of related transactions, (iii) any tender offer or exchange offer (whether by the Company or another person) is completed pursuant to
which holders of Common Stock tender or exchange their shares for other securities, cash or property, or (iv) the Company effects any
reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock
covered by Section 10(a) above) (in any such case, a “Fundamental Transaction”), then upon any subsequent conversion
of this Note, the Investor shall have the right to receive, for each Underlying Share that would have been issuable upon such conversion
absent such Fundamental Transaction, the same kind and amount of securities, cash or property as it would have been entitled to receive
upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of
one share of Common Stock (the “Alternate Consideration”). For purposes of any such conversion, the Company shall
apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different
components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to
be received in a Fundamental Transaction, then the Investor shall be given the same choice as to the Alternate Consideration it receives
upon any conversion of this Note following such Fundamental Transaction.
(d)
Reclassifications; Share Exchanges. In case of any reclassification of the Common Stock, or any compulsory share exchange pursuant
to which the Common Stock is converted into other securities, cash or property (other than compulsory share exchanges which constitute
Change of Control transactions), the Investor shall have the right thereafter to convert such shares only into the shares of stock and
other securities, cash and property receivable upon or deemed to be held by holders of Common Stock following such reclassification or
share exchange, and the Investor shall be entitled upon such event to receive such amount of securities, cash or property as a holder
of the number of shares of Common Stock of the Company into which such shares of the Note could have been converted immediately prior
to such reclassification or share exchange would have been entitled. This provision shall similarly apply to successive reclassifications
or share exchanges.
(e)
Calculations. All calculations under this Section 10 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the
Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
(f)
Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this Section 10 (other than excluded transactions under
clause (i) of paragraph (a)), the Company at its expense will promptly compute such adjustment in accordance with the terms hereof and
prepare a certificate describing in reasonable detail such adjustment and the transactions giving rise thereto, including all facts upon
which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Investor.
(g)
Notice of Corporate Events. If the Company (i) declares a dividend or any other distribution of cash, securities or other property
in respect of its Common Stock, including without limitation any granting of rights or warrants to subscribe for or purchase any capital
stock of the Company or any subsidiary of Parent (other than excluded transactions under clause (i) of paragraph (a)), (ii) authorizes
and publicly approves, or enters into any agreement contemplating or solicits shareholder approval for any Fundamental Transaction or
(iii) publicly authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall
deliver to the Investor a notice describing the material terms and conditions of such transaction, at least 20 calendar days prior to
the applicable record or effective date on which a person would need to hold Common Stock in order to participate in or vote with respect
to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Investor is given the practical
opportunity to convert this Note into Common Stock under Section 9 hereof prior to such time so as to participate in or vote with
respect to such transaction; provided, however, that the failure to deliver such notice or any defect therein shall not affect the validity
of the corporate action required to be described in such notice.
(h)
Fractional Shares. The Company shall not be required to issue or cause to be issued fractional Underlying Shares on conversion
of this Note. If any fraction of an Underlying Share would, except for the provisions of this Section, be issuable upon conversion of
this Note or payment of interest hereon, the number of Underlying Shares to be issued will be rounded up to the nearest whole share.
11.
Event of Default;
Acceleration. Upon the occurrence of an Event of Default, the Maturity Date shall be deemed also to have occurred and the
outstanding principal amount of this Note and all accrued and unpaid interest thereon shall immediately be due and payable to the
Investor. The Company waives presentment, demand, notice of dishonor, protest, and notice of nonpayment and protest of this
Note.
12.
Notices. Any
and all notices or other communications or deliveries hereunder shall be in writing and shall be deemed given and effective on the
earliest of (i) the date of transmission, if such notice or communication is delivered via e-mail specified in this Section prior to
6:30 p.m. (New York City time) on Trading Day, (ii) the next Trading Day after the date of transmission, if such notice or
communication is delivered via e-mail specified in this Section on a day that is not a Trading Day or later than 6:30 p.m. (New York
City time) on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. The addresses for such
communications shall be: (i) if to the Company, Empire Petroleum Corporation, 2200 S. Utica Place, Suite 150, Tulsa Oklahoma 74114,
Attention: Chief Executive Officer and President, E-mail: mike@empirepetrocorp.com; and (ii) if to the Investor, to the address or
e-mail appearing on the shareholder records of the Company or such other address or e-mail as the Investor may provide to the
Company in accordance with this Section.
13.
Miscellaneous.
(a)
This Note shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns. The Company
may not assign any of its rights or obligations hereunder to any other person without the prior written consent of the Investor, which
may be given or withheld in its sole discretion.
(b)
Nothing in this Note shall be construed to give to any person or corporation other than the Company and the Investor any legal or equitable
right, remedy, or cause under this Note.
(c)
All questions concerning the construction, validity, enforcement, and interpretation of this Note shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened (“Proceeding”).
The prevailing party in a Proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation, and prosecution of such Proceeding.
(d)
The headings herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of
the provisions hereof.
(e)
In case any one or more of the provisions of this Note shall be deemed by a court of competent jurisdiction to be invalid or unenforceable
in any respect, the validity and enforceability of the remaining terms and provisions of this Note shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially
reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Note.
(f)
No provision of this Note may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company
and the Investor or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Note shall be deemed to be a continuing waiver in the future or a waiver
of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either
party to exercise any right hereunder in any manner impair the exercise of any such right.
(g)
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will
resist any and all efforts to be compelled to take, the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter
in force, in connection with any claim, action or Proceeding that may be brought by any Investor in order to enforce any right or remedy
under this Note. Notwithstanding any provision to the contrary contained in this Note, it is expressly agreed and provided that the total
liability of the Company under this Note for payments in the nature of interest shall not exceed the maximum lawful rate authorized under
applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or
default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be obligated to
pay under this Note exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable
to this Note is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum
contract rate of interest allowed by law will be the Maximum Rate of interest applicable to this Note from the effective date forward,
unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate
is paid by the Company to any Investor with respect to indebtedness evidenced by this Note, such excess shall be applied by such Investor
to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to be at such
Investor’s election.
[Signature
on Next Page]
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.
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Empire Petroleum Corporation |
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By: /s/ Michael Morrisett |
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Name: Michael Morrisett |
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Title: President and CEO |
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EXHIBIT
A
Empire
Petroleum Corporation
Promissory
Note due February 15, 2026 (the “Note”)
CONVERSION
NOTICE
(To
be Executed by the Investor
in
order to convert the Note)
The
undersigned hereby elects to convert the principal amount of the Note indicated below into shares of Common Stock of Empire Petroleum
Corporation as of the Conversion Date under the Note. If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as
reasonably requested by the Company in accordance therewith. No fee will be charged to the Investor for any conversion, except for such
transfer taxes, if any. All terms used in this notice shall have the meanings set forth in the Note.
| Conversion
calculations: |
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Conversion
Date
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Principal
amount of Note owned prior to conversion |
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Principal
amount of Note to be Converted |
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Principal
amount of Note remaining after Conversion |
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Number
of shares of Common Stock to be Issued |
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Name
of Investor |
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By: _______________________________________________________________________________ |
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Name: |
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Title: |
Schedule
1
Empire
Petroleum Corporation
Promissory
Note due February 15, 2026
CONVERSION
SCHEDULE
(to
be attached to each Conversion Notice)
This
Conversion Schedule reflects conversions made under the Note through the Conversion Date specified in the Conversion Notice to which
this schedule is attached.
Conversion
Date |
Principal
Amount
of Conversion |
Aggregate
Principal Amount Remaining After Conversion Date |
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Empire Petroleum (AMEX:EP)
過去 株価チャート
から 12 2024 まで 1 2025
Empire Petroleum (AMEX:EP)
過去 株価チャート
から 1 2024 まで 1 2025
