333-99455
(Commission File Number)
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32-0027992
(IRS Employer Identification No.)
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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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Warrant Class/
Exercise Price
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Number of Shares
Common Stock
(Reserved)
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Aggregate Exercise
Price
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Class A Warrants
(US$0.35)
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4,000,000
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US$1400,000
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Class B Warrants
(US$0.60)
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4,000,000
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US$2,400,000
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Total
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8,000,000
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Exhibit
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Description
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10.1
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Form of Subscription Agreement
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10.2
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Form of Class A Warrant
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10.3
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Form of Class B Warrant
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99.1
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Press Release
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SKY PETROLEUM, INC.
(Registrant)
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Dated: January 19, 2012
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By: /s/ Michael D. Noonan
Michael D. Noonan
VP Corporate and Chief Financial Officer
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Exhibit
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Description
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10.1
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Form of Subscription Agreement
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10.2
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Form of Class A Warrant
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10.3
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Form of Class B Warrant
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99.1
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Press Release
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Number of Units: ______________________
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(Name of Subscriber)
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=
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Account Reference (if applicable):
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By:
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Aggregate Subscription Amount: US$ _______________
(insert total subscription amount in US$)
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Authorized Signature
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_________________________________________________________________
(Official Capacity or Title – if the Subscriber is not an individual)
_________________________________________________________________
(Name of individual whose signature appears above if different than the name of the subscriber printed above.)
_________________________________________________________________
(Subscriber’s Address, including Municipality and Province)
_________________________________________________________________
S.I.N. or Taxation Account of Subscriber
_________________________________________________________________
(Telephone Number) (Email Address)
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If the Subscriber 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. Tender of Aggregate Subscription Amount: Subscriber tenders to the Corporation the Aggregate Subscription Amount by a check payable to the order of “Sky Petroleum, Inc.” | ||
b. Closing: Upon receipt by the Corporation of the Purchase Price, the closing (the “Closing”) shall occur on or about October 10, 2011, or such other date as may be determined by the Corporation, at 401 Congress Avenue, Suite 1540, Austin, Texas, 78701 (the "Closing Date"). All funds will be delivered to the Corporation. The Securities subscribed for herein will not be deemed issued to, or owned by, the Subscriber until the Subscription Agreement has been executed by the Subscriber and countersigned by the Corporation, and all payments required to be made herein have been made. The Closing is subject to the fulfillment of the following conditions (the “Conditions”) which Conditions the Corporation and the Subscriber covenant to exercise their reasonable best efforts to have fulfilled on or prior to the Closing Date: |
(i) |
the Subscriber shall have tendered the Aggregate Subscription Amount to the Corporation;
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(ii) |
all relevant documentation and approvals as may be required by applicable securities statutes, regulations, policy statements and interpretation notes, by applicable securities regulatory authorities and by applicable rules shall have been obtained and, where applicable, executed by or on behalf of the Subscriber;
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(iii) |
the Corporation shall have authorized and approved the execution and delivery of this Subscription Agreement (“Agreement’) and the issuance, allotment and delivery of the Securities;
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(iv) |
the Corporation and the Subscriber shall have complied with its covenants contained in this Agreement to be complied with prior to Closing, and the Corporation for the benefit of the Subscriber shall have delivered a Certificate of a senior officer of the Corporation (acting without personal liability) to that effect to the Subscriber; and
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(v) |
the representations and warranties of the Corporation and the Subscriber set forth in this Agreement shall be true and correct as of the Closing Date.
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c. Issuance of Securities: Within five (5) days after the Closing Date, the Corporation will deliver the certificates representing the Common Shares and the Warrants subscribed for to the Subscriber at the address set forth in the registration instructions set forth on the signature page (unless Subscriber otherwise instructs the Corporation in writing). | ||
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a.
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SUBSCRIBER UNDERSTANDS THAT THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD ABSENT SUCH REGISTRATION OR AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS AND THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES AGENCY. THE SUBSCRIBER UNDERSTANDS AND AGREES THAT THE SECURITIES ARE BEING OFFERED AND SOLD TO THE PURCHASER IN RELIANCE UPON APPLICABLE EXEMPTIONS PROVIDED UNDER RULE 903 OF REGULATION S UNDER THE U.S. SECURITIES ACT OR RULE 506 OF REGULATION D AND/OR SECTION 4(2) UNDER THE U.S. SECURITIES ACT;
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b.
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Subscriber is not an underwriter and Subscriber acquired the Securities solely for investment for its own account and not with a view to, or for, resale in connection with any distribution of securities within the meaning of the U.S. Securities Act; and the Securities are not being purchased with a view to or for the resale, distribution, subdivision or fractionalization thereof; and the undersigned has no contract, undertaking, understanding, agreement, or arrangement, formal or informal, with any person to sell, transfer, or pledge to any person the Securities for which it hereby subscribes, or any part thereof; and it understands that the legal consequences of the foregoing representations and warranties to mean that it must bear the economic risk of the investment for an indefinite period of time because the Securities have not been registered under the U.S. Securities Act, and, therefore, may be resold only if registered under the U.S. Securities Act or if an exemption from such registration is available;
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c.
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Subscriber understands the speculative nature and risks of investments associated with the Corporation, and confirms that the Securities would be suitable and consistent with its investment program and that its financial position enables Subscriber to bear the risks of this investment, and that there may not be any public market for the Securities;
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d.
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the Securities subscribed for herein may not be transferred, encumbered, sold, hypothecated, or otherwise disposed of to any person, except in compliance with the U.S. Securities Act and applicable state securities laws. The Subscriber acknowledges that the Securities are “restricted securities,” as such term is defined under Rule 144 of the U.S. Securities Act, and may not be offered, sold, transferred, pledged, or hypothecated to any person in the absence of registration under the U.S. Securities Act or an opinion of counsel satisfactory to the Corporation that registration is not required and in accordance with all applicable state securities laws. Without limiting the generality or application of any other covenants, representations, warranties or acknowledgements of the Subscriber respecting resale of the Securities, if the Subscriber decides to offer, sell or otherwise transfer any of the Securities, it will not offer, sell or otherwise transfer any of such Securities directly or indirectly, unless:
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(i) |
the sale is to the Corporation;
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(ii) |
the sale is made outside the United States in a transaction satisfying the requirements of Regulation S under the U.S. Securities Act and in compliance with applicable local laws and regulations;
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(iii) |
the sale is made pursuant to the exemption from the registration requirements under the U.S. Securities Act provided by Rule 144 thereunder and in accordance with any applicable state securities laws and the Subscriber has, prior to such sale, furnished to the Corporation an opinion of counsel to that effect, which opinion and counsel shall be reasonably satisfactory to the Corporation;
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(iv) |
the Securities are sold 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 the Securities, and it has prior to such sale furnished to the Corporation an opinion of counsel to that effect, which opinion and counsel shall be reasonably satisfactory to the Corporation; or
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(v) | the Securities are registered under the U.S. Securities Act and any applicable state laws and regulations governing the offer and sale of such Securities, and the Subscriber understands that the Corporation may instruct its registrar and transfer agent not to record any transfer of the Securities without first being notified by the Corporation that it is satisfied that such transfer is exempt from or not subject to the registration requirements of the U.S. Securities Act and applicable state securities laws; |
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e.
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Subscriber understands that (i) the Corporation’s authorized capital consists of 150,000,000 shares of common stock and 10,000,000 shares of preferred stock, (ii) the Corporation will be required to increase its authorized capital to permit the exercise of all of the Class B Warrants, (iii) the shareholders of the Corporation are required to approve an amendment to the Corporation’s articles of incorporation prior to the exercise of Class B Warrants in order for the Corporation to issue common stock in excess of 150,000,000 shares and (iv) there can be no assurance that the shareholders of the Corporation will approval an amendment to the Corporation’s articles of incorporation in a timely manner, if at all.
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f.
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At the time of subscription, Subscriber reviewed the economic consequences of the purchase of the Securities with its attorney and/or other financial advisor, was afforded access to the books and records of the Corporation, conducted an independent investigation of the business of the Corporation, and was fully familiar with the financial affairs of the Corporation. Subscriber consulted with its counsel with respect to the U.S. Securities Act and applicable federal and state securities laws. The Corporation has not provided the Subscriber with any representations, statements, or warranties as to the Securities. Subscriber has had access to the Corporation’s periodic public filings with the United States Securities and Exchange Commission (“the “SEC”) available electronically on EDGAR at www.sec.gov and has been provided a copy of such filings if so requested.
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g.
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Subscriber had the opportunity to ask questions of the Corporation and receive additional public information from the Corporation to the extent that the Corporation possessed such information, or could acquire it without unreasonable effort or expense, necessary to evaluate the merits and risks of an investment in the Corporation.
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h.
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Subscriber confirms that (i) it is able to bear the economic risk of the investment, (ii) it is able to hold the Securities for an indefinite period of time, (iii) it is able to afford a complete loss of its investment and that it has adequate means of providing for its current needs and possible personal contingencies, and that it has no need for liquidity in this investment, (iv) this investment is
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suitable for Subscriber based upon his investment holdings and financial situation and needs, and this investment does not exceed ten percent of Subscriber’s net worth, and (v) Subscriber by reason of its business or financial experience could be reasonably assumed to have the capacity to protect its own interests in connection with this investment.
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i.
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The Subscriber has not purchased the Securities as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.
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j.
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Unless the Subscriber has completed and delivered a U.S. Accredited Investor Certificate (Exhibit A), the Subscriber represents and acknowledges that:
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(i)
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it is not a “U.S. person”, as defined in Regulation S under the U.S. Securities Act (which definition includes but is not limited to (A) any individual resident in the United States, (B) any partnership or corporation organized or incorporated under the laws of the United States, (C) any partnership or corporation formed by a U.S. person under the laws of any foreign jurisdiction principally for the purpose of investing in securities not registered under the U.S. Securities Act, or (D) any estate or trust of which any executor, administrator or trustee is a U.S. person), and is not purchasing the Securities for the account or benefit of a “U.S. person” or person in the United States;
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(ii)
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Subscriber was not offered any of the Securities in the United States, did not receive any materials relating to the offer of the Securities in the United States, and did not execute this Agreement or any other materials relating to the purchase of the Securities in the United States;
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(iii)
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Subscriber is not purchasing the Class A Units as the result of any directed selling efforts (as defined in Rule 902(c) of the U.S. Securities Act);
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(iv)
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the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the U.S. Securities Act; and
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(v)
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Subscriber has no intention to distribute either directly or indirectly any of the Securities in the United States, except in compliance with the U.S. Securities Act and any applicable state securities laws;
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k.
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the Certificates representing the Securities delivered pursuant to this Subscription shall bear a legend in the following form:
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l.
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Subscriber consents to the Corporation making a notation on its records or giving instruction to the registrar and transfer agent of the Corporation in order to implement the restrictions on transfer set forth and described herein;
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m.
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Subscriber acknowledges that the Class A Warrants and the Class B Warrants may not be exercised by or for the account or benefit of a U.S. Person or a person in the United States unless such warrants and the securities issuable upon exercise of the warrants are registered under the U.S. Securities Act and the securities laws of all applicable states or an exemption is available from the registration requirements of such laws, and the holder has furnished an opinion of counsel satisfactory to the Corporation to such effect; provided that in the case of a Subscriber who delivers the U.S. Accredited Investor Certificate attached as Exhibit A hereto in connection with its purchase of Class A Units pursuant to the Private Placement, the Subscriber will not be required to deliver an opinion of counsel in connection with the due exercise of the Class A Warrants and the Class B Warrants, as applicable, at a time when the representations, warranties and covenants made by the Subscriber therein remain true and correct;
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n.
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Subscriber has no knowledge of a “material fact” or “material change” (as those terms are defined in the U.S. federal and state securities laws) in respect of the Corporation that has not been generally disclosed to the public;
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(i)
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a corporation, Subscriber is duly incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Subscription Agreement, to subscribe for the Class A Units as contemplated herein and to carry out and perform its obligations under the terms of this Agreement;
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(ii)
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a partnership, syndicate or other form of unincorporated organization, Subscriber has the necessary legal capacity and authority to execute and deliver this Agreement and to observe and perform its covenants and obligations hereunder and has obtained all necessary approvals in respect thereof; or
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(iii)
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an individual, Subscriber is of full age of majority and is legally competent to execute this Agreement and to observe and perform his or her covenants and obligations hereunder;
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p.
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the entering into of this Agreement and the transactions contemplated hereby will not result in the violation of any of the terms or provisions of any law applicable to, or the constating documents of, Subscriber or of any agreement, written or oral, to which Subscriber may be a party or by which it is or may be bound;
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q.
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in connection with Subscriber’s subscription, Subscriber has not relied upon the Corporation for investment, legal or tax advice, and has in all cases sought or elected not to seek the advice of Subscriber’s own personal investment advisers, legal counsel and tax advisers;
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r.
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that the funds representing the Subscription Price which will be advanced by Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the “PATRIOT Act”) and Subscriber acknowledges that the Corporation may in the future be required by law to disclose Subscriber's name and other information relating to the subscription agreement and Subscriber's subscription hereunder, on a confidential basis, pursuant to the PATRIOT Act. No portion of the Subscription Price to be provided by Subscriber (i) has been or will be derived from or related to any activity that is deemed criminal under the laws of the United States of America, or any other jurisdiction, or (ii) is being tendered on behalf of a person or entity who has not been identified to or by Subscriber, and it shall promptly notify the Corporation if Subscriber discovers that any of such representations ceases to be true and provide the Corporation with appropriate information in connection therewith;
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s.
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Subscriber acknowledges and agrees that upon the original issuance of the Class A Warrants and Class B Warrants, as applicable, and until such time as it is no longer required under applicable requirements of the U.S. Securities Act or applicable state securities laws, all certificates representing such warrants and all certificates issued in exchange therefor or in substitution thereof, shall bear the following legend:
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t.
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Subscriber acknowledges that the representations, warranties and covenants contained in this Agreement are made by it with the intent that they may be relied upon by the Corporation in determining its eligibility or the eligibility of others on whose behalf it is contracting thereunder to purchase Securities. It agrees that by accepting Securities it shall be representing and warranting
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that the representations and warranties above are true as at the Closing with the same force and effect as if they had been made by it at the Closing and that they shall survive the purchase by it of Securities and shall continue in full force and effect notwithstanding any subsequent disposition by it of such Securities.
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a.
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each of the Corporation 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 Corporation 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 authorized capital of the Corporation consists of 150,000,000 shares of common stock, par value $0.001 per share, of which there were 61,868,709 issued and outstanding as of September 30, 2011; and 10,000,000 shares of preferred stock, par value $0.001 per share, of which 5,000,000 shares were designated Series B Preferred Stock and 3,863,636 were issued and outstanding as of September 30, 2011;
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d.
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the Corporation will reserve or set aside sufficient shares of common stock in its treasury to issue the Class A Warrant Shares, Class B Unit Shares and Class B Warrant Shares issuable upon exercise of the Class A Warrants and Class B Warrants, as applicable, and all such Securities will upon payment of the recited consideration and issuance be duly and validly issued as fully paid and non-assessable, subject to the requirement that the authorized capital of the Corporation will be required to be increased in connection with the exercise of the Class B Warrants;
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e.
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the issue and sale of the Securities by the Corporation does 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 agreement or instrument to which the Corporation is a party;
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f.
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the Corporation has complied and will comply fully with the requirements of all applicable corporate and securities laws in all matters relating to the offering of the Class A Units;
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g.
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there are no legal or governmental actions, litigation, suits, proceedings or investigations pending or, to the Corporation’s knowledge, threatened, to which the Corporation or any of its subsidiaries is or may be a party or of which property owned or leased by the Corporation 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 Corporation;
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h.
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there are no judgments against the Corporation or any of its subsidiaries, if any, which are unsatisfied, nor is the Corporation 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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i.
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this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and legally binding obligation of the Corporation 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;
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j.
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no order ceasing, halting or suspending trading in securities of the Corporation nor prohibiting the sale of such securities has been issued to and is outstanding against the Corporation or its directors, officers or promoters, and, to the best of the Corporation’s knowledge, no investigations or proceedings for such purposes are pending or threatened;
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k.
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no person, firm or corporation acting or purporting to act at the request of the Corporation is entitled to any brokerage, agency or finder’s fee in connection with the purchase and sale of the Securities described herein;
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l.
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the Corporation is a "reporting issuer" under section 12 of the Securities Exchange Act of 1934, as amended (the “1934 Act”) and is not in default of any of the requirements of the 1934 Act;
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m.
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as of their respective filing dates, each report, schedule, registration statement and proxy filed by the Corporation with the United States Securities and Exchange Commission (“SEC”) (each, an “SEC Report” and collectively, the “SEC Reports”) (and if any SEC Report filed prior to the date of this Agreement was amended or superseded by a filing prior to the date of this Agreement, then also on the date of filing of such amendment or superseding filing), where required, (i) were prepared in all material respects in accordance with the requirements of the U.S. Securities Act, or the 1934 Act, as the case may be, and the rules and regulations promulgated under such Acts applicable to such SEC Reports; (ii) did not contain any untrue statements of a material fact and did not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) are all the forms, reports and documents required to be filed by the Company with the SEC since that time;
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n.
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each subsidiary of the Corporation is identified in the Corporation’s SEC Reports;
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o.
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each set of audited consolidated financial statements and unaudited interim financial statements of the Corporation (including any notes thereto) included in the SEC Reports (i) complies as to form in all material respects with the published rules and regulations of the SEC with respect thereto, and (ii) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis (except as may be indicated therein or in the notes thereto) and fairly present, in all material respects, the financial position of the Corporation as of the dates thereof and the results of its operations and cash flows for the periods then ended subject, in the case of the unaudited interim financial statements, to normal year-end adjustments which were not or are not expected to be material in amount;
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p.
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the Corporation and its subsidiary maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
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q.
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the Corporation has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Corporation or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of the Corporation which are known by the Corporation’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of the Corporation;
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r.
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the Corporation is not an "investment company" within the meaning of the Investment Company Act of 1940;
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s.
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neither the Corporation 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 Securities;
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t.
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the Corporation has not, for a period of six months prior to the date hereof, sold, offered for sale or solicited, and will not for a period of six months after the Closing Date, offer, sell or solicit, any offer to buy any of its securities in a manner that would be integrated with the offer and sale of the Securities and would cause the exemption from registration set forth in Rule 506 of Regulation D or Rule 903 of Regulation S of the U.S. Securities Act to become unavailable with respect to the offer and sale of the Securities;
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u.
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the Corporation and each subsidiary has accurately prepared and timely filed all United States and foreign tax returns that are required to be filed by it and has paid or made provision for the payment of all taxes, assessments, governmental or other similar charges, including without limitation, all sales and use taxes and all taxes which the Corporation or any subsidiary is obligated to withhold from amounts owing to employees, creditors and third parties, with respect to the periods covered by such tax returns (whether or not such amounts are shown as due on any tax return), except in any such case as could not reasonably be expected to have a material adverse effect on the Corporation; and
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v.
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the warranties and representations in this section are true and correct and will remain so as of the Closing Date.
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a.
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Increase Authorized Capital: The Corporation agrees to use commercially reasonable efforts to (i) promptly call a meeting of its stockholders, (ii) cause its board of directors to recommend that the Corporation’s shareholder approve an amendment to the Corporation’s articles of incorporation to increase the authorized capital of the Corporation in an amount sufficient to permit the exercise of all of the Class B Warrants, (iii) cause its shareholders to approve an amendment to the Corporation’s articles of incorporation to increase the authorized capital of the Corporation and (iv) to file an amendment to the Corporation’s articles of incorporation with the State of Nevada. The Corporation agrees not to issue Common Shares from treasury until after the Corporation has filed an amendment to the Corporation’s articles of incorporation pursuant to this Section 4(a).
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b.
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Registration Rights: The Corporation shall:
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(i)
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not later than the 60th day after the Closing Date (or, if such day is a Saturday, Sunday or holiday, then by the next succeeding business day), use commercially reasonable efforts to prepare and file a registration statement on Form S-1 (or, if Form S-1 is not then available, on such form of registration statement as is then available) to enable the resale of the Common Shares, including Common Shares acquirable upon exercise of Class A Warrants (collectively the “Registrable Securities”) by the Subscribers from time to time (the “Registration Statement”). The initial Registration Statement shall cover the resale of 100% of the Registrable Securities, for an offering to be made on a continuous basis pursuant to Rule 415 (as promulgated by the SEC pursuant to the U.S. Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule); provided, however, that if the Corporation receives a comments from the SEC with respect to the use of Rule 415 and cannot resolve such comment and 100% of the Registrable Securities included hereunder shall equal or exceed 33% of the issued and outstanding shares of common stock of the Corporation (less any shares of common stock held by affiliates of the Corporation and the holders of the Registrable Securities) on the actual filing date of the initial Registration Statement, the initial Registration Statement shall register a number of Registrable Securities which shall equal 33% of the issued and outstanding shares of common stock of the Corporation (less any shares of common stock held by affiliates of the Corporation and the holders of the Registrable Securities) on such actual filing.
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(ii)
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use commercially reasonable efforts to cause the Registration Statement to be declared effective by the SEC within 120 days from the final Closing Date herein;
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(iii)
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use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith (the “Prospectus”) as may be necessary to keep the Registration Statement continuously current, effective and free from any material misstatement or omission to state a material fact for a period not exceeding, with respect to the Subscriber’s Common Shares and Warrant Shares purchased hereunder from the date it is first declared effective until, the earlier of (A) one year from the date of the final exercise of all of the Warrants, (B) the date on which the Subscriber may sell all Common Shares and Warrant Shares then held by the Subscriber pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (C) the public sale of all of the Common Shares and the Warrant Shares (such period, the “Effectiveness Period”);
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(iv)
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use its reasonable commercial efforts to file documents required of the Corporation for blue sky clearance in states specified in writing by the Subscriber; and
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(v)
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advise the Subscriber in writing promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the SEC delaying or suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its reasonable commercial efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
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(vi)
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Notwithstanding anything to the contrary herein, the Registration Statement shall cover only the Common Shares and such other securities issued by the Corporation subject to registration rights.
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a.
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For a period of two years from the Closing Date, the Corporation agrees to indemnify and hold harmless each Subscriber, their respective officers, directors, employees, partners, legal counsel and accountants from and against any losses, claims, damages, expenses or liabilities (or actions or proceedings in respect thereof) to which such Subscriber or such other indemnified person may become subject (including in settlement of litigation, whether commenced or threatened) insofar as such losses, claims, damages, expenses or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any breach of the representations or warranties provided by the Corporation in this Agreement.
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b.
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For a period of two years from the Closing Date, Subscriber agrees to indemnify and hold harmless the Corporation, its respective officers, directors, employees, partners, legal counsel and accountants from and against any losses, claims, damages, expenses or liabilities (or actions or proceedings in respect thereof) to which the Corporation or such other indemnified person may become subject (including in settlement of litigation, whether commenced or threatened) insofar as such losses, claims, damages, expenses or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any breach of the representations or warranties provided by Subscriber in this Agreement.
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If to Subscriber: | At the address designated on the signature page of this Agreement. | |
If to the Corporation: | Sky Petroleum, Inc.
401 Congress Avenue, Suite 1540
Austin, Texas, 78701
Fax: 512-687-3428
Attn: Michael Noonan
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|
With Copy to: | Dorsey & Whitney LLP
Brookfield Place, Canada Trust Tower
161 Bay Street, Suite 4310
Toronto, Ontario, M5J 2S1
Fax: (416) 367-7371
Attention: Kenneth G. Sam
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*
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By the foregoing signature, I hereby certify to Sky Petroleum, Inc. that I am duly empowered and authorized to provide the foregoing information.
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Sky Petroleum, Inc.
By: _________________________________________
Title: _________________________________________
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(a)
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it is purchasing the Securities for its own account or for the account of one or more persons for whom it is exercising sole investment discretion, (a “Beneficial Purchaser”), for investment purposes only and not with a view to resale or distribution and, in particular, neither it nor any Beneficial Purchaser for whose account it is purchasing the Securities has any intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons; provided, however, that this paragraph shall not restrict the Subscriber from selling or otherwise disposing of any of the Securities pursuant to registration thereof pursuant to the U.S. Securities Act and any applicable state securities laws or under an exemption from such registration requirements;
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(b)
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it, and if applicable, each Beneficial Purchaser for whose account it is purchasing the Securities is a U.S. accredited investor that satisfies one or more of the criteria set forth in Rule 501(a) of Regulation D of the U.S. Securities Act, as indicated below (the Subscriber must initial “SUB” for the Subscriber, and “BP” for each Beneficial Purchaser, if any, on the appropriate line(s)):
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____
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Category 1.
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A bank, as defined in Section 3(a)(2) of the U.S. Securities Act, whether acting in its individual or fiduciary capacity; or
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____
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Category 2.
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A savings and loan association or other institution as defined in Section 3(a)(5)(A) of the U.S. Securities Act, whether acting in its individual or fiduciary capacity; or
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____
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Category 3.
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A broker or dealer registered pursuant to Section 15 of the United States Securities Exchange Act of 1934, as amended; or
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____
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Category 4.
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An insurance company as defined in Section 2(13) of the U.S. Securities Act; or
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____
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Category 5.
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An investment company registered under the United States Investment Corporation Act of 1940; or
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____
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Category 6.
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A business development company as defined in Section 2(a)(48) of the United States Investment Corporation Act of 1940; or
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____
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Category 7.
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A small business investment company licensed by the U.S. Small Business Administration under Section 301 (c) or (d) of the United States Small Business Investment Act of 1958; or
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____
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Category 8.
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A plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, with total assets in excess of U.S. $5,000,000; or
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____
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Category 9.
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An employee benefit plan within the meaning of the United States Employee Retirement Income Security Act of 1974 in which the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or an employee benefit plan with total assets in excess of U.S. $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons who are accredited investors; or
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____
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Category 10.
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A private business development company as defined in Section 202(a)(22) of the United States Investment Advisers Act of 1940; or
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____
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Category 11.
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An organization described in Section 501(c)(3) of the United States Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of U.S. $5,000,000; or
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____
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Category 12.
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Any director or executive officer of the Issuer; or
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____
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Category 13.
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A natural person whose individual net worth, or joint net worth with that person’s spouse, at the date hereof exceeds U.S. $1,000,000 (Note: The value of an individual's primary residence may not be included in this net worth calculation, and any indebtedness in excess of the value of an individual's primary residence should be considered a liability and should be deducted from an individual's net worth); or
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____
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Category 14.
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A natural person who had an individual income in excess of U.S. $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of U.S. $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; or
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____
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Category 15.
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A trust, with total assets in excess of U.S. $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the U.S. Securities Act; or
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____
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Category 16.
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Any entity in which all of the equity owners meet the requirements of at least one of the above categories;
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If a Corporation, Partnership or Other Entity:
___________________________________________________
Name of Entity
___________________________________________________
Type of Entity
___________________________________________________
Signature of Person Signing
___________________________________________________
Print or Type Name and Title of Person Signing
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If an Individual:
___________________________________________________
Signature
___________________________________________________
Print or Type Name
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Certificate Number: 2012 Class A - 000
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Class A Warrant representing
the Right to Purchase
«Number» Class B Units
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a.
|
represents to the Company, pursuant to subparagraph 1 of the attached Exercise Form, that (i) at the time of exercise of the Class A Warrants the holder is not within the United States, (ii) the holder is not exercising the Class A Warrants for the account or benefit of a U.S. Person or person in the United States, and (iii) the delivery of the underlying Common Shares and Class B Warrants will not be to an address in the United States;
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b.
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represents to the Company, pursuant to subparagraph 2 of the attached Exercise Form, that (i) the holder is a U.S. Purchaser (as such term is defined in the subscription agreement pursuant to which the holder purchased the Class A Warrants from the Company (the “Subscription Agreement”), (ii) the holder was the original subscriber for the Class A Warrants from the Company, and (iii) the representations, warranties and covenants set forth in the Subscription Agreement are true and correct on the date of exercise, including specifically the representations and warranties in Schedule A to the Subscription Agreement; or
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c.
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provides, pursuant to subparagraph 3 of the attached Exercise Form, a written opinion of counsel satisfactory to the Company that the Common Shares and Class B Warrants to be delivered upon exercise of the Class A Warrants have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or are exempt from such registration requirements.
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(a)
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If and whenever at any time prior to the Expiry Time, the Company shall (i) subdivide or redivide the outstanding Common Shares into a greater number of shares, (ii) reduce, combine or consolidate the outstanding Common Shares into a smaller number of shares, or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend, the exercise price in effect on the effective date of any such event shall be adjusted immediately after such event or on the record date for such issue of Common Shares by way of stock dividend, as the case may be, so that it shall equal the amount determined by multiplying the purchase exercise price in effect immediately prior to such event by a fraction, of which the numerator shall be the total number of Common Shares outstanding immediately prior to such event and of which the denominator shall be the total number of Common Shares outstanding immediately after such event; and the number of Common Shares which the holder is entitled to purchase upon exercise of each Warrant shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; such adjustments shall be made successively whenever any event referred to in this subsection (a) shall occur; any such issue of Common Shares by way of a stock dividend shall be deemed to have been made on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares immediately after such event under this subsection (a) and subsection (e) of this Section.
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(b)
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If and whenever at any time prior to the Expiry Time, the Company shall fix a record date for the issuance of rights, options or warrants to all or substantially all of the holders of the outstanding Common Shares, entitling them, for a period expiring not more than 45 days after such record
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|
date, to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price on such record date, the purchase price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the purchase price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date plus the number arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by such Current Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date plus the total number of additional Common Shares offered for subscription or purchase (or into which the convertible or exchangeable securities so offered are convertible or exchangeable); and the number of Common Shares which the holder is entitled to purchase upon exercise of each Warrant shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; any Common Shares owned by or held for the account of the Company or any subsidiary of the Company shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that any such rights, options or warrants are not so issued or any such rights, options or warrants are not exercised prior to the expiration thereof, the purchase price shall then be re-adjusted to the exercise price which would then be in effect based upon the number and aggregate price of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be.
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(c)
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If and whenever at any time prior to the Expiry Time, the Company shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of: (i) shares of any class other than Common Shares, other than shares distributed to holders of Common Shares pursuant to their exercise of options to receive dividends in the form of such shares in lieu of Dividends Paid in the Ordinary Course on the Common Shares and other than the issue of Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend, or (ii) subject to paragraph 1(b), rights, options or warrants (excluding rights exercisable for 45 days or less) or (iii) evidence of its indebtedness, or (iv) assets (excluding Dividends Paid in the Ordinary Course), including shares of other corporations, then, in each such case, the purchase price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the purchase price in effect on such record date by a fraction, of which the numerator shall be the greater of: (i) one; and (ii) the total number of Common Shares outstanding on such record date multiplied by the Current Market Price per Common Share on such record date, less the fair market value (as determined by the board of directors of the Company, acting reasonably, which determination, absent manifest error, shall be conclusive) of such shares or rights, options or warrants or evidences or indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Current Market Price per Common Share; and the number of Common Shares which the holder is entitled to purchase upon exercise of each Warrant shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; any Common Shares owned by or held for the account of the Company shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the exercise price shall be re-adjusted to the exercise price which would then be in effect if such record date had not been fixed or to the exercise price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be, and in clause (iv) the term “Dividends Paid in the Ordinary Course” shall include the value of any securities or other property or assets distributed in lieu of cash Dividends Paid in the Ordinary Course.
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(d)
|
If and whenever at any time prior to the Expiry Time, there is a reclassification of the Common Shares at any time outstanding or a change of the Common Shares into other shares or a capital reorganization of the Company not covered in subsection (a) of this section or a consolidation,
|
|
amalgamation or merger of the Company with or into any other corporation or a sale of the property and assets of the Company as or substantially as an entirety to any other person, a holder holding Class A Warrants represented by this Warrant Certificate which have not been exercised prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger or sale shall thereafter, upon the exercise of such Warrants, be entitled to receive and shall accept in lieu of the number of Common Shares, as then constituted, to which the holder was previously entitled upon exercise of the Class A Warrants, but for the same aggregate consideration payable therefore, the number of shares or other securities or property of the Company or of the corporation resulting from such reclassification, consolidation, amalgamation or merger or of the person to which such sale may be made, as the case may be, that such holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger or sale of, on the effective date thereof, as if the holder had been the registered holder of the number of Common Shares to which the holder was previously entitled upon due exercise of the Class A Warrants; and in any case, if necessary, appropriate adjustment shall be made in the application of the provisions set forth in this Warrant Certificate with respect to the rights and interests thereafter of the holders of the Class A Warrants to the end that the provisions set forth in this Warrant Certificate shall thereafter correspondingly be made applicable, as nearly as may reasonably be, in relation to any shares or securities or property to which the holder may be entitled upon the exercise of such Warrants thereafter.
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(e)
|
The adjustments required under the terms of this Warrant Certificate upon the occurrence of any of the events referred to herein shall become effective immediately after a record date for such event, and the Company may defer, until the occurrence of such event, issuing to the holder of any Class A Warrants exercised after such record date and before the occurrence of such event the kind and amount of shares, other securities or property to which it would be entitled upon such exercise by reason of the adjustment required by such event; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive the kind and amount of shares, other securities or property to which it would be entitled upon the occurrence of the event requiring such adjustment and the right to receive any distributions made or declared in favour of holders of record of Common Shares as constituted from time to time on and after such date as the holder would, but for the provisions of this subsection (e), have received, or become entitled to receive, on such exercise.
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(f)
|
The adjustments provided for in this Warrant Certificate are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Warrant Certificate provided that, notwithstanding any other provision of this Section, no adjustment of the purchase price or number of Common Shares, as then constituted, and Class B Warrants, purchasable shall be required unless such adjustment would require an increase or decrease, of at least 1% in the purchase price or the number of Common Shares, as then constituted, and Class B Warrants, purchasable then in effect; provided however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
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(g)
|
In the event of any question arising with respect to the adjustments provided in this Warrant Certificate, such question shall, absent manifest error, be conclusively determined by a firm of chartered accountants appointed by the Company (who may be the auditors of the Company) and acceptable to the holder, acting reasonably, with the assistance of legal counsel, who may be legal counsel to the Company; such accountants shall have access to all necessary records of the Company and such determination shall be binding upon the Company and the holder.
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(a)
|
“Current Market Price” per Common Share or Participating Share at any date shall be the closing price per share for such shares on a day before such date on OTCBB (or if the Common Shares are not listed on such stock exchange, on such other exchange on which the Common Shares are listed as may be selected for such purpose by the directors of the Company, or if the Common Shares are not listed on any stock exchange, then on the over the counter market);
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(b)
|
“Common Shares” means the Company’s presently authorized common voting shares without par value and shall also include any other authorized classes of shares in the capital of the Company which do not have special rights and restrictions attaching fixed dividends thereto and limiting the participation of holders of shares of such classes in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of the Company;
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(c)
|
“Dividends Paid in the Ordinary Course” means cash dividends declared payable on the Common Shares in any fiscal year of the Company to the extent that such cash dividends do not exceed, in the aggregate, the greatest of: (i) 50% of the retained earnings of the Company at the end of the immediately preceding fiscal year; (ii) 150% of the aggregate amount and/or value of dividends declared payable by the Company on the Common Shares in its immediately preceding fiscal year; and (iii) 100% of the net earnings of the Company, before extraordinary items, for its immediately preceding fiscal year (versus the amount or value of all dividends paid or payable in respect of such fiscal year which credited net earnings) to be as shown in the audited consolidated financial statements of the Company for such preceding fiscal year or, if there are no audited financial statements with respect to such period, computed in accordance with generally accepted accounting principles consistent with the applications made in preparation of the most recent audited consolidated financial statements of the Company, and for such purpose the amounts of any dividend paid in shares shall be the aggregate deemed issue price of such shares and the amount of any dividend paid in other than cash or shares shall be the fair market value of such dividend as declared by resolution passed by the board of directors of the Company.
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Sky Petroleum, Inc.
Per: _________________________________________
Authorized Signatory
|
_____1.
|
represents to the Company that (i) at the time of exercise of this Class A Warrant the undersigned is not within the United States, (ii) the undersigned is not exercising this Class A Warrants for the account or benefit of a U.S. Person or person in the United States, and (iii) the delivery of the underlying Class B Units will not be to an address in the United States;
|
_____2.
|
represents to the Company that (i) the undersigned is a U.S. Purchaser (as such term is defined in the subscription agreement pursuant to which the undersigned purchased this Class A Warrant from the Company (the “Subscription Agreement”), (ii) the undersigned was the original subscriber for the Class A Warrants from the Company, and (iii) the representations, warranties and covenants set forth in the Subscription Agreement are true and correct on the date of exercise of this Class A Warrant, including specifically the representations and warranties in Schedule A to the Subscription Agreement; or
|
_____3.
|
confirms that the undersigned is tendering with this exercise form a written opinion of counsel satisfactory to the Company to the effect that the securities to be delivered upon exercise of this Class A Warrant have been registered under the United States Securities Act of 1933, as amended, (the "U.S. Securities Act") and the securities laws of all applicable states of the United States or are exempt from such registration requirements.
|
_______________________________________________________
Signature Witnessed (see instructions to Class A Warrant holders)
|
_______________________________________________________
Signature of Class A Warrant holder (to be the same as appears on the face of this Class A Warrant Certificate) or authorized signing officer if a corporation
|
Name of Class A Warrant holder:
|
____________________________________
|
Address (please print):
|
____________________________________
____________________________________
|
Effective Exercise Price: __________________
Number of Class A Warrants Exercised: ____________
Total Exercise Price: US$__________________
|
Exercise price US$0.35 per Class B Unit, subject to adjustment.
|
______
|
The undersigned transferee hereby certifies that (i) it is not a U.S. Person and was not offered the Class A Warrants while in the United States and did not execute this certificate while within the United States, (ii) it is not acquiring any of the Class A Warrants represented by this Class A Warrant Certificate by or on behalf of any U.S. person or person within the United States, and (iii) it has in all other respects complied with the terms of Regulation S of the United States Securities Act of 1933, as amended (the “US Securities Act”), or any successor rule or regulation of the United States Securities and Exchange Commission as presently in effect.
|
______
|
The undersigned transferee is delivering a written opinion of U.S. counsel to the effect that this transfer of Class A Warrants has been registered under the U.S. Securities Act or are exempt from registration thereunder.
|
Signature: ____________________________________ | |
Certificate Number: 2012 Class B - 000
|
Class B Warrants representing
the Right to Purchase
«Number» Common Shares
|
a.
|
represents to the Company, pursuant to subparagraph 1 of the attached Exercise Form, that (i) at the time of exercise of the Class B Warrants the holder is not within the United States, (ii) the holder is not exercising the Class B Warrants for the account or benefit of a U.S. Person or person in the United States, and (iii) the delivery of the underlying Common Shares will not be to an address in the United States;
|
b.
|
represents to the Company, pursuant to subparagraph 2 of the attached Exercise Form, that (i) the holder is a U.S. Purchaser (as such term is defined in the subscription agreement pursuant to which the holder purchased the Class B Warrants from the Company (the “Subscription Agreement”), (ii) the holder was the original subscriber for the Class B Warrants from the Company, and (iii) the representations, warranties and covenants set forth in the Subscription Agreement are true and correct on the date of exercise, including specifically the representations and warranties in Schedule A to the Subscription Agreement; or
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c.
|
provides, pursuant to subparagraph 3 of the attached Exercise Form, a written opinion of counsel satisfactory to the Company that the Common Shares to be delivered upon exercise of the Class B Warrants have been registered under the U.S. Securities Act and the securities laws of all applicable states of the United States or are exempt from such registration requirements.
|
(a)
|
If and whenever at any time prior to the Expiry Time, the Company shall (i) subdivide or redivide the outstanding Common Shares into a greater number of shares, (ii) reduce, combine or consolidate the outstanding Common Shares into a smaller number of shares, or (iii) issue Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend, the exercise price in effect on the effective date of any such event shall be adjusted immediately after such event or on the record date for such issue of Common Shares by way of stock dividend, as the case may be, so that it shall equal the amount determined by multiplying the purchase exercise price in effect immediately prior to such event by a fraction, of which the numerator shall be the total number of Common Shares outstanding immediately prior to such event and of which the denominator shall be the total number of Common Shares outstanding immediately after such event; and the number of Common Shares which the holder is entitled to purchase upon exercise of each Class B Warrant shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; such adjustments shall be made successively whenever any event referred to in this subsection (a) shall occur; any such issue of Common Shares by way of a stock dividend shall be deemed to have been made on the record date for the stock dividend for the purpose of calculating the number of outstanding Common Shares immediately after such event under this subsection (a) and subsection (e) of this Section.
|
(b)
|
If and whenever at any time prior to the Expiry Time, the Company shall fix a record date for the issuance of rights, options or warrants to all or substantially all of the holders of the outstanding
|
|
Common Shares, entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for Common Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price on such record date, the purchase price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the purchase price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date plus the number arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by such Current Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date plus the total number of additional Common Shares offered for subscription or purchase (or into which the convertible or exchangeable securities so offered are convertible or exchangeable); and the number of Common Shares which the holder is entitled to purchase upon exercise of each Class B Warrant shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; any Common Shares owned by or held for the account of the Company or any subsidiary of the Company shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that any such rights, options or warrants are not so issued or any such rights, options or warrants are not exercised prior to the expiration thereof, the purchase price shall then be re-adjusted to the exercise price which would then be in effect based upon the number and aggregate price of Common Shares (or securities convertible into or exchangeable for Common Shares) actually issued upon the exercise of such rights, options or warrants, as the case may be.
|
(c)
|
If and whenever at any time prior to the Expiry Time, the Company shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of: (i) shares of any class other than Common Shares, other than shares distributed to holders of Common Shares pursuant to their exercise of options to receive dividends in the form of such shares in lieu of Dividends Paid in the Ordinary Course on the Common Shares and other than the issue of Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a stock dividend, or (ii) subject to paragraph 1(b), rights, options or warrants (excluding rights exercisable for 45 days or less) or (iii) evidence of its indebtedness, or (iv) assets (excluding Dividends Paid in the Ordinary Course), including shares of other corporations, then, in each such case, the purchase price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the purchase price in effect on such record date by a fraction, of which the numerator shall be the greater of: (i) one; and (ii) the total number of Common Shares outstanding on such record date multiplied by the Current Market Price per Common Share on such record date, less the fair market value (as determined by the board of directors of the Company, acting reasonably, which determination, absent manifest error, shall be conclusive) of such shares or rights, options or warrants or evidences or indebtedness or assets so distributed, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by such Current Market Price per Common Share; and the number of Common Shares which the holder is entitled to purchase upon exercise of each Class B Warrant shall be adjusted at the same time by multiplying the number by the inverse of the aforesaid fraction; any Common Shares owned by or held for the account of the Company shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the exercise price shall be re-adjusted to the exercise price which would then be in effect if such record date had not been fixed or to the exercise price which would then be in effect based upon such shares or rights, options or warrants or evidences of indebtedness or assets actually distributed, as the case may be, and in clause (iv) the term “Dividends Paid in the Ordinary Course” shall include the value of any securities or other property or assets distributed in lieu of cash Dividends Paid in the Ordinary Course.
|
(d)
|
If and whenever at any time prior to the Expiry Time, there is a reclassification of the Common Shares at any time outstanding or a change of the Common Shares into other shares or a capital
|
|
reorganization of the Company not covered in subsection (a) of this section or a consolidation, amalgamation or merger of the Company with or into any other corporation or a sale of the property and assets of the Company as or substantially as an entirety to any other person, a holder holding Class B Warrants represented by this Warrant Certificate which have not been exercised prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, merger or sale shall thereafter, upon the exercise of such Class B Warrants, be entitled to receive and shall accept in lieu of the number of Common Shares, as then constituted, to which the holder was previously entitled upon exercise of the Class B Warrants, but for the same aggregate consideration payable therefore, the number of shares or other securities or property of the Company or of the corporation resulting from such reclassification, consolidation, amalgamation or merger or of the person to which such sale may be made, as the case may be, that such holder would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, merger or sale of, on the effective date thereof, as if the holder had been the registered holder of the number of Common Shares to which the holder was previously entitled upon due exercise of the Class B Warrants; and in any case, if necessary, appropriate adjustment shall be made in the application of the provisions set forth in this Warrant Certificate with respect to the rights and interests thereafter of the holders of the Class B Warrants to the end that the provisions set forth in this Warrant Certificate shall thereafter correspondingly be made applicable, as nearly as may reasonably be, in relation to any shares or securities or property to which the holder may be entitled upon the exercise of such Class B Warrants thereafter.
|
(e)
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The adjustments required under the terms of this Warrant Certificate upon the occurrence of any of the events referred to herein shall become effective immediately after a record date for such event, and the Company may defer, until the occurrence of such event, issuing to the holder of any Class B Warrants exercised after such record date and before the occurrence of such event the kind and amount of shares, other securities or property to which it would be entitled upon such exercise by reason of the adjustment required by such event; provided, however, that the Company shall deliver to such holder an appropriate instrument evidencing such holder’s right to receive the kind and amount of shares, other securities or property to which it would be entitled upon the occurrence of the event requiring such adjustment and the right to receive any distributions made or declared in favour of holders of record of Common Shares as constituted from time to time on and after such date as the holder would, but for the provisions of this subsection (e), have received, or become entitled to receive, on such exercise.
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(f)
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The adjustments provided for in this Warrant Certificate are cumulative and shall apply to successive subdivisions, redivisions, reductions, combinations, consolidations, distributions, issues or other events resulting in any adjustment under the provisions of this Warrant Certificate provided that, notwithstanding any other provision of this Section, no adjustment of the purchase price or number of Common Shares, as then constituted, purchasable shall be required unless such adjustment would require an increase or decrease, of at least 1% in the purchase price or the number of Common Shares, as then constituted, purchasable then in effect; provided however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
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(g)
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In the event of any question arising with respect to the adjustments provided in this Class B Warrant Certificate, such question shall, absent manifest error, be conclusively determined by a firm of chartered accountants appointed by the Company (who may be the auditors of the Company) and acceptable to the holder, acting reasonably, with the assistance of legal counsel, who may be legal counsel to the Company; such accountants shall have access to all necessary records of the Company and such determination shall be binding upon the Company and the holder.
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(a)
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“Current Market Price” per Common Share or Participating Share at any date shall be the closing price per share for such shares on a day before such date on OTCBB (or if the Common Shares are not listed on such stock exchange, on such other exchange on which the Common Shares are listed as may be selected for such purpose by the directors of the Company, or if the Common Shares are not listed on any stock exchange, then on the over the counter market);
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(b)
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“Common Shares” means the Company’s presently authorized common voting shares without par value and shall also include any other authorized classes of shares in the capital of the Company which do not have special rights and restrictions attaching fixed dividends thereto and limiting the participation of holders of shares of such classes in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of the Company;
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(c)
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“Dividends Paid in the Ordinary Course” means cash dividends declared payable on the Common Shares in any fiscal year of the Company to the extent that such cash dividends do not exceed, in the aggregate, the greatest of: (i) 50% of the retained earnings of the Company at the end of the immediately preceding fiscal year; (ii) 150% of the aggregate amount and/or value of dividends declared payable by the Company on the Common Shares in its immediately preceding fiscal year; and (iii) 100% of the net earnings of the Company, before extraordinary items, for its immediately preceding fiscal year (versus the amount or value of all dividends paid or payable in respect of such fiscal year which credited net earnings) to be as shown in the audited consolidated financial statements of the Company for such preceding fiscal year or, if there are no audited financial statements with respect to such period, computed in accordance with generally accepted accounting principles consistent with the applications made in preparation of the most recent audited consolidated financial statements of the Company, and for such purpose the amounts of any dividend paid in shares shall be the aggregate deemed issue price of such shares and the amount of any dividend paid in other than cash or shares shall be the fair market value of such dividend as declared by resolution passed by the board of directors of the Company.
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Sky Petroleum, Inc.
Per: _________________________________________
Authorized Signatory
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_____1.
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represents to the Company that (i) at the time of exercise of this Class B Warrant the undersigned is not within the United States, (ii) the undersigned is not exercising this Class B Warrants for the account or benefit of a U.S. Person or person in the United States, and (iii) the delivery of the underlying Common Shares will not be to an address in the United States;
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_____2.
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represents to the Company that (i) the undersigned is a U.S. Purchaser (as such term is defined in the subscription agreement pursuant to which the undersigned purchased this Class B Warrant from the Company (the “Subscription Agreement”), (ii) the undersigned was the original subscriber for the Class B Warrants from the Company, and (iii) the representations, warranties and covenants set forth in the Subscription Agreement are true and correct on the date of exercise of this Class B Warrant, including specifically the representations and warranties in Schedule A to the Subscription Agreement; or
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_____3.
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confirms that the undersigned is tendering with this exercise form a written opinion of counsel satisfactory to the Company to the effect that the securities to be delivered upon exercise of this Class B Warrant have been registered under the United States Securities Act of 1933, as amended, (the "U.S. Securities Act") and the securities laws of all applicable states of the United States or are exempt from such registration requirements.
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____________________________________________________________
Signature Witnessed (see instructions to Class B Warrant holders)
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____________________________________________________________
Signature of Class B Warrant holder (to be the same as appears on the face of this Class B Warrant Certificate) or authorized signing officer if a corporation
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Name of Class B Warrant holder:
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____________________________________________________________ |
Address (please print):
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____________________________________________________________
____________________________________________________________
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Effective Exercise Price: __________________
Number of Class B Warrants Exercised: ____________
Total Exercise Price: US$__________________
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Exercise price US$0.60 per Common Share, subject to adjustment.
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______
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The undersigned transferee hereby certifies that (i) it is not a U.S. Person and was not offered the Class B Warrants while in the United States and did not execute this certificate while within the United States, (ii) it is not acquiring any of the Class B Warrants represented by this Class B Warrant Certificate by or on behalf of any U.S. person or person within the United States, and (iii) it has in all other respects complied with the terms of Regulation S of the United States Securities Act of 1933, as amended (the “US Securities Act”), or any successor rule or regulation of the United States Securities and Exchange Commission as presently in effect.
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______
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The undersigned transferee is delivering a written opinion of U.S. counsel to the effect that this transfer of Class B Warrants has been registered under the U.S. Securities Act or are exempt from registration thereunder.
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Signature: ____________________________________ | |
For Immediate Release
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Contact: Investor and Public Relations
512-687-3427
info@skypetroleum.com
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