STRATOS RENEWABLES CORPORATION UNSECURED CONVERTIBLE PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT
STRATOS
RENEWABLES CORPORATION
THIS
UNSECURED CONVERTIBLE PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT
(this
“Agreement”)
is
made as of _________, 2008, by and among Stratos Renewables Corporation,
a
Nevada corporation (the “Company”),
and
the person or entity listed on the schedule of purchasers attached hereto
as
Schedule I
(the
“Purchaser”).
RECITALS
A. On
the
terms and subject to the conditions set forth herein, the Purchaser is willing
to purchase from the Company, and the Company is willing to sell to such
Purchaser, an unsecured convertible promissory note in the principal amount
of
$____________, and warrants to acquire up to _____________ shares of Company
common stock (“Common
Stock”).
B. Capitalized
terms not defined when first used shall have the meaning provided in
Exhibit
A.
AGREEMENT
NOW
THEREFORE,
in
consideration of the foregoing, and the representations, warranties, and
conditions set forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. The
Note and Warrants.
(a) Issuance
of Note and Warrants.
At the
Closing, the Company agrees to issue and sell to the Purchaser, and, subject
to
all of the terms and conditions hereof, the Purchaser agrees to purchase
an
unsecured convertible promissory note in the form attached hereto as
Exhibit B
(the
“Note”)
in the
principal amount set forth opposite the Purchaser’s name on Schedule I
hereto.
In conjunction with the sale of the Note, at the Closing, the Company also
agrees to issue warrants for the purchase of the number of shares of Common
Stock, set forth opposite the Purchaser’s name on Schedule
I
hereto,
in the form attached hereto as Exhibit
C
(the
“Warrants”).
(b) Delivery.
The
sale and purchase of the Note and Warrants shall take place at a closing
(the
“Closing”)
to be
held on ___________, 2008 (the “Closing
Date”)
at
such place as the Company and the Purchaser may determine. At the Closing,
the
Company will deliver the Note and Warrants to the Purchaser, and the Purchaser
shall deliver the principal amount of the Note to the Company for purchase
of
the Note and the Warrants. The Note and Warrants will be registered in such
Purchaser’s name in the Company’s records.
(c) Payments.
The
Company will make all cash payments due under the Note in immediately available
funds on the date such payment is due in the manner and at the address for
such
purpose specified below the Purchaser’s name on Schedule I
hereto,
or at such other address as a Purchaser or other registered holder of a Note
may
from time to time direct in writing.
(d) Monitoring
Fee.
The
Company will pay to the Holder a monitoring fee at the Maturity Date in an
amount equal to 5% of the original principal amount of the Note in
cash.
2. Representations
and Warranties of the Company.
The
Company represents and warrants to the Purchaser
that:
(a)
Corporate
Existence and Power.
The
Company (a) is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (b) is duly
qualified to do business in each additional jurisdiction where the failure
to so
qualify would have a Material Adverse Effect, and (c) has all requisite
corporate power to own its respective properties and to carry on its respective
businesses as now being conducted and as proposed to be conducted. The Company
has all requisite corporate power to execute, deliver and perform its
Obligations under the Note Documents.
(b)
Binding
Effect.
This
Agreement and each of the other Note Documents to which the Company is a
party
have been duly executed and delivered by the Company and are, and the Note
when
issued, executed and delivered as contemplated herein will be, the legal,
valid
and binding obligations of the Company, in each case enforceable against
the
Company in accordance with their respective terms, except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and
other
similar laws affecting creditors’ rights generally and by general principles of
equity.
(c)
No
Conflicts with Agreements, Etc.
Neither
the execution and delivery by the Company of this Agreement or any of the
other
Note Documents to which it is a party, nor the offering, issuance or sale
of the
Note nor the fulfillment of or compliance with the terms and provisions hereof
or thereof, will conflict with, or result in a breach or violation of the
terms,
conditions or provisions of, or constitute a default under, or result in
the
creation of any Lien on any properties or assets of the Company pursuant
to, the
Organizational Documents of the Company, or any contract, agreement, mortgage,
indenture, lease or instrument to which it is a party or by which it is bound
or
to which its assets are subject, or any Requirement of Law to which it or
its
assets are subject,
which
conflict, breach, violation, default or Lien could reasonably be expected
to
have a Material Adverse Effect.
(d)
Consents,
Etc.
To the
Company’s Knowledge, except for the consent of the holders of the Company’s
Series A Preferred Stock under the Company’s Amended and Restated Certificate of
Designation, Powers, Preferences and Rights of Series A Preferred Stock,
no
consent, approval or authorization of or declaration, registration or filing
with any Governmental Authority or any nongovernmental Person, including
any
creditor or stockholder of the Company, is required in connection with the
execution or delivery by the Company of this Agreement or the other Note
Documents to which the Company is a party, or the performance by the Company
of
its Obligations hereunder and thereunder, or as a condition to the legality,
validity or enforceability of this Agreement or any other Note
Document.
(e)
Material
Contracts.
The
Company is not in breach or violation of any of the terms, conditions or
provisions of any of its material contracts, and to the best knowledge of
the
Company no third party to any of such material contracts is in breach or
violation of any of the terms, conditions or provisions thereof,
which
breach could reasonably be expected to have a Material Adverse
Effect.
The
Company has not transferred or subordinated any of its rights or interests
in
any of its material contracts, and such rights and interests are subject
to no
Liens except Permitted Liens.
(f) Litigation.
(i)
There
are
no actions, suits, or proceedings pending, or, to the Company’s knowledge,
threatened against or affecting the Company, its Subsidiary, or any properties
or rights of any of them which, if adversely determined, individually or
in the
aggregate would have a Material Adverse Effect.
(ii)
There
are
no actions, suits or proceedings pending, or, to the Company’s knowledge,
threatened in writing against the Company which seek to enjoin, or otherwise
prevent the consummation of, the transactions contemplated herein or to recover
any damages or obtain any relief as a result of any of the transactions
contemplated herein in any court or before any arbitrator of any kind or
before
or by any Governmental Authority.
(g) Compliance
With Laws; No Default.
(i)
To
the
Company’s knowledge, the Company is not now, or will be after or as a result of
giving effect to the transactions contemplated herein, in default under or
in
violation of any Order of any court, arbitrator or Governmental Authority
or of
any federal, state, local or foreign Requirement of Law, which default or
violation could reasonably be expected to have a Material Adverse
Effect.
(ii)
To
the
Company’s knowledge, the Company is not in default under or with respect to any
provision of any security issued by any such Person, of any of their respective
Organizational Documents, or of any agreement, undertaking, contract, indenture,
mortgage, deed of trust or other instrument, document or agreement to which
any
such Person is a party or by which it or any of its property is bound which,
individually or together with all such defaults, could reasonably be expected
to
have a Material Adverse Effect.
(h)
Possession
of Franchises, Licenses, Etc.
To the
Company’s knowledge, the Company possess all material franchises, certificates,
licenses, permits, registrations, and other authorizations from Governmental
Authorities, that are necessary for the ownership, maintenance and operation
of
their respective properties and assets, and for the conduct of its businesses
as
now conducted, and the Company is not in violation of any thereof in any
material respect.
(i) Broker's
or Finder's Commissions.
No
broker's or finder's fee or commission will be payable by the Company with
respect to the issuance and sale of the Note.
(j) Disclosure.
Neither
this Agreement nor any other document, certificate or statement furnished
to the
Purchaser by or on behalf of the Company in connection herewith, contained,
as
of its respective date, or now contains, any untrue statement of a material
fact
or as of any such date omitted, or now omits, to state a material fact necessary
in order to make the statements contained herein and therein not
misleading.
3. Representations
and Warranties of the Purchaser.
The
Purchaser, represents and warrants to the Company as follows:
(a) Binding
Obligation.
Such
Purchaser has full legal capacity, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement is
a
valid and binding obligation of the Purchaser, enforceable in accordance
with
its terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of creditors’ rights
generally and general principles of equity.
(b) Securities
Law Compliance.
Such
Purchaser has been advised that the Note has not been registered under the
Securities Act, or any state securities laws and, therefore, cannot be resold
unless it is registered under the Securities Act and applicable state securities
laws or unless an exemption from such registration requirements is available.
Such Purchaser is aware that the Company is under no obligation to effect
any
such registration with respect to the resale of the Note or to file for,
or
comply with any exemption from registration for such purpose. Such Purchaser
has
not been formed solely for the purpose of making this investment and is
purchasing the Note to be acquired by such Purchaser hereunder for its own
account for investment, not as a nominee or agent, and not with a view to,
or
for resale in connection with, the distribution thereof. Such Purchaser has
such
knowledge and experience in financial and business matters that such Purchaser
is capable of evaluating the merits and risks of such investment, is able
to
incur a complete loss of such investment and is able to bear the economic
risk
of such investment for an indefinite period of time. Such Purchaser is an
accredited investor as such term is defined in Rule 501 of
Regulation D under the Securities Act.
(c) Access
to Information.
Such
Purchaser acknowledges that the Company has given such Purchaser access to
the
corporate records and accounts of the Company and to all information in its
possession relating to the Company, has made its officers and representatives
available for interview by such Purchaser, and has furnished such Purchaser
with
all documents and other information required for such Purchaser to make an
informed decision with respect to the purchase of the Note.
4. Conditions
to Closing of the Purchaser.
The
Purchaser’s obligations at the Closing are subject to the fulfillment, on or
prior to the Closing Date, of all of the following conditions, any of which
may
be waived in whole or in part by the Purchaser:
(a) Representations
and Warranties.
The
representations and warranties made by the Company in Section 2 hereof
shall have been true and correct when made, and shall be true and correct
on the
Closing Date.
(b) Transaction
Documents.
The
Company shall have duly executed and delivered to the Purchaser the following
documents:
(i) this
Agreement;
(ii) the
Note
issued hereunder; and
(iii) the
Warrants issued hereunder.
(c) Governmental
Approvals and Filings.
Except
for any notices required
or
permitted to be filed after the Closing Date with certain federal and state
securities commissions, Company shall have obtained all governmental approvals
required in connection with the lawful sale and issuance of the
Note.
(d) Legal
Requirements.
At the
Closing, the sale and issuance by Company, and the purchase by the Purchaser,
of
the Note shall be legally permitted by all laws and regulations to which
the
Purchaser or Company are subject.
(e) Proceedings
and Documents.
All
corporate and other proceedings in connection with the transactions contemplated
at the Closing and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to the
Purchaser.
(f) Corporate
Documents.
Company
shall have delivered to the Purchaser each of the following:
(i) A
Certificate of Good Standing or comparable certificate as to Company, certified
as of a recent date prior to the Closing Date by the Secretary of State of
Nevada; and
(ii) A
certificate of the Secretary of Company, dated the Closing Date, certifying
(a) that attached thereto are true and correct copies of resolutions duly
adopted by the Board of Directors of Company (of a duly constituted committee
thereof) and continuing in effect, which authorize the execution, delivery
and
performance by Company of this Agreement and the Note and the consummation
of
the transactions contemplated hereby and thereby; and (b) that there are no
proceedings for the dissolution or liquidation of Company (commenced or
threatened).
5. Conditions
to Obligations of the Company.
The
Company’s obligation to issue and sell the Note and Warrants at the Closing is
subject to the fulfillment, on or prior to the Closing Date, of the following
conditions, any of which may be waived in whole or in part by the
Company:
(a) Representations
and Warranties.
The
representations and warranties made by the Purchaser in Section 3 hereof
shall be true and correct when made, and shall be true and correct on the
Closing Date.
(b) Transaction
Documents.
The
Purchaser shall have duly executed and delivered to the Company this
Agreement.
(c) Purchase
Price.
The
Purchaser shall have delivered to the Company the Purchase Price in respect
of
the Note being purchased by such Purchaser referenced in Section 1(a)
hereof.
6. Miscellaneous.
(a) Usury
Limitations.
It is
the intention of the Company and the Purchaser to conform strictly to applicable
usury laws. Accordingly, notwithstanding anything to the contrary in this
Agreement or the Note, amounts constituting interest under applicable law
and
contracted for, chargeable or receivable hereunder or under the Note shall
under
no circumstances, together with any other interest, late charges or other
amounts which may be interpreted to be interest contracted for, chargeable
or
receivable hereunder or thereunder, exceed the maximum amount of interest
permitted by law, and in the event any amounts were to exceed the maximum
amount
of interest permitted by law, such excess amounts shall be deemed a mistake
and
shall either be reduced immediately and automatically to the maximum amount
permitted by law or, if required to comply with applicable law, be canceled
automatically and, if theretofore paid, at the option of the Purchaser, be
refunded to the Company or credited on the principal amount of the Note then
outstanding.
(b) Punitive
Damages.
Each
party to this Agreement agrees that it shall not have a remedy of punitive,
special, exemplary, indirect or consequential damages against any other party
to
this Agreement in connection with any claim or dispute arising hereunder
and
hereby waives any right or claim to any such damages that such party now
has or
which may arise in the future in connection with any such claim or dispute,
whether such claim or dispute is resolved by arbitration or
judicially.
(c) Waivers
and Amendments.
Any
provision of this Agreement may be amended, waived or modified only upon
the
written consent of the Company and Holder of the Note. The failure of a party
to
exercise any of its rights under this Agreement or to require the performance
of
any term or provision of this Agreement, or the waiver by a party of a breach
of
this Agreement, shall not prevent a subsequent exercise or enforcement of
such
rights or be deemed a waiver of any subsequent breach of the same or any
other
term or provision of this Agreement. A waiver of any right under this Agreement
shall be effective only if in writing and signed by the party against which
such
waiver is to be enforced.
(d) Governing
Law.
This
Agreement and all actions arising out of or in connection with this Agreement
shall be governed by and construed in accordance with the laws of the State
of
Nevada, without regard to the conflicts of law provisions of the State of
Nevada
or of any other state.
(e) Survival.
The
representations, warranties, covenants and agreements made herein shall survive
the execution and delivery of this Agreement and be deemed to be material
to and
relied upon by the Purchaser, regardless of any investigation made by the
Purchaser or on its behalf.
(f) Successors
and Assigns.
Subject
to the restrictions on transfer described in Sections 6(i)
and 6(j) below, the rights and obligations of the Company and the
Purchaser of the Note shall be binding upon and benefit the successors, assigns,
heirs, administrators and transferees of the parties.
(g) Registration,
Transfer and Replacement of the Note.
The
Note issuable under this Agreement shall be a registered note. The Company
will
keep, at its principal executive office, books for the registration and
registration of transfer of the Note. Prior to presentation of any Note for
registration of transfer, the Company shall treat the Person in whose name
such
Note is registered as the owner and holder of such Note for all purposes
whatsoever, whether or not such Note shall be overdue, and the Company shall
not
be affected by notice to the contrary. Subject to any restrictions on or
conditions to transfer set forth in any Note, the holder of any Note, at
its
option, may in person or by duly authorized attorney surrender the same for
exchange at the Company’s chief executive office, and promptly thereafter and at
the Company’s expense, except as provided below, receive in exchange therefor
one or more new Note(s), each in the principal amount requested by such holder,
dated the date to which interest shall have been paid on the Note so surrendered
or, if no interest shall have yet been so paid, dated the date of the Note
so
surrendered and registered in the name of such Person or Persons as shall
have
been designated in writing by such holder or its attorney for the same principal
amount as the then unpaid principal amount of the Note so surrendered. Upon
receipt by the Company of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation of any Note and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it; or (b) in the case of mutilation, upon surrender
thereof, the Company, at its expense, will execute and deliver in lieu thereof
a
new Note executed in the same manner as the Note being replaced, in the same
principal amount as the unpaid principal amount of such Note and dated the
date
to which interest shall have been paid on such Note or, if no interest shall
have yet been so paid, dated the date of such Note.
(h) Assignment
by Company.
Neither
the Note nor any of the rights, interests or obligations hereunder nor
thereunder may be assigned, by operation of law or otherwise, in whole or
in
part, by the Company without the prior written consent of the Holder of the
Note.
(i) Notices.
Any
notice, request or other communication required or permitted hereunder shall
be
in writing and shall be deemed to have been duly given if personally delivered
or mailed by registered or certified mail, postage prepaid, or by recognized
overnight courier or personal delivery, addressed (i) if to a Purchaser, at
such Purchaser’s address set forth in the Schedule of Purchasers attached as
Schedule I,
or at
such other address as such Purchaser shall have furnished the Company in
writing, or (ii) if to the Company,
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to:
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Stratos
Renewables Corporation
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0000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxxxx
Xxxxx, XX 00000
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Attention:
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Xxxxxxx
Xxxxxxxxx
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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with
a copy to:
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Xxxxx
& Xxxxxxxxx, LLP
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00000
Xxxxxxxx Xxxxxxxxx, 00xx
Xxxxx
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Xxx
Xxxxxxx, XX 00000
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Attention:
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Xxxxxxx
X. Xxxx, Esq.
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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or
at
such other address as the Company shall have furnished to the Purchaser in
writing.
(j) Severability
of this Agreement.
If any
provision of this Agreement shall be judicially determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
(k) Entire
Agreement.
This
Agreement together with the Note, the other Note Documents and exhibits
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof,
and
supersede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter hereof and thereof.
(l) Remedies.
Except
as
otherwise provided herein, no remedy made available to either party hereto
by
any of the provisions of this Agreement is intended to be exclusive of any
other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder now or hereafter existing at law or
in
equity.
(m) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall be deemed to constitute one
instrument.
(n) Telecopy
Execution and Delivery.
A
facsimile, telecopy or other reproduction of this Agreement may be executed
by
one or more parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto,
all
parties hereto agree to execute an original of this Agreement as well as
any
facsimile, telecopy or other reproduction hereof.
(o) WAIVER
OF JURY TRIAL.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A JURY
IN ANY
LEGAL PROCEEDING ARISING OUT OR A RELATED TO THIS AGREEMENT, THE NOTE, THE
WARRANTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the date and year first written
above.
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COMPANY:
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STRATOS
RENEWABLES
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CORPORATION
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a
Nevada corporation
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By:
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Name:
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Title:
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PURCHASER:
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a
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By:
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Name:
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Title:
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SIGNATURE
PAGE TO UNSECURED PROMISSORY NOTE AND WARRANT PURCHASE
AGREEMENT
SCHEDULE
I
SCHEDULE
OF PURCHASERS
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Name
and Address
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Note
Amount
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Note
No.
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Number
of Warrants
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Warrant
No.
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______,
a
_________
________________
________________
________________
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$____________
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__________
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___________
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___________
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EXHIBIT
A
DEFINITIONS
Defined
Terms.
For the
purposes of this Agreement, the following terms shall have the following
respective meanings:
“GAAP”
means
generally accepted accounting principles as in effect from time to time in
the
United States of America, applied on a consistent basis both as to
classification of items and amounts.
“Governmental
Authority”
means
any nation or government, any state, province, county, city, municipality,
town,
village, department or other political subdivision thereof, any agency,
authority, instrumentality, regulatory body, court, administrative tribunal
or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (including any central
bank or similar monetary or regulatory authority), and any corporation or
other
entity owned or controlled, through stock or capital ownership or otherwise,
by
any of the foregoing.
“Knowledge”
means,
with respect to the Company, the actual knowledge of the Chief Executive
Officer
and Chief Financial Officer of the Company.
“Lien”
means
any security interest, mortgage, pledge, lien, claim, charge, encumbrance,
conditional sale or title retention agreement, or lessor's interest under
a
capitalized lease or analogous instrument, in, of or on any of a Person's
property (whether held on the date hereof or hereafter acquired).
“Material
Adverse Effect”
means
any change or effect that individually or in the aggregate with other changes
or
effects are materially adverse to (i) the assets, business, operations,
income, prospects or condition (financial or otherwise) of the Company and
its
Subsidiary taken as a whole, (ii) the legality, validity or enforceability
of this Agreement or any of the other Note Documents, or (iii) the ability
of
the Company to fulfill its obligations under this Agreement and the other
Note
Documents.
“Obligations”
means
all of the Indebtedness, obligations and liabilities of the Company under
the
Note Documents, whether now existing or hereafter created or arising, direct
or
indirect, matured or unmatured, and whether absolute or contingent, joint,
several or joint and several, and no matter how the same may be evidenced
or
shall arise, including (a) the obligation to pay principal, interest, charges
(including prepayment charges, if any), expenses, fees, attorneys’ fees and
disbursements, indemnities and other amounts payable by or chargeable to
the
Company under any Note Document and (b) the obligations of the Company to
reimburse any amount in respect of any of the foregoing that the Purchaser,
in
its sole discretion, may elect to pay or advance on behalf of the
Company.
“Order”
means
any order, writ, injunction, decree, judgment, award, determination or written
direction or demand of any court, arbitrator or Governmental
Authority.
“Organizational
Documents”
means
(a) with respect to any corporation, the certificate of incorporation, articles
of incorporation or comparable constitutional or charter document, and by-laws,
of such corporation, (b) with respect to any limited liability company, the
certificate of formation or comparable document filed with the Secretary
of
State or comparable official of the state of organization of such limited
liability company, and the operating agreement, limited liability company
agreement or comparable constitutive document thereof, (c) with respect to
any
limited partnership, the certificate of limited partnership or comparable
document filed with the Secretary of State or comparable official of the
state
of organization of such limited partnership and the limited partnership
agreement thereof, (d) with respect to any general partnership or joint venture,
the partnership agreement or joint venture agreement relating thereto, (e)
with
respect to any trust, the trust agreement or comparable agreement establishing
such trust, or (f) with respect to any other business entity, the comparable
constitutive documents, in each case with all amendments, modifications and
supplements thereto from time to time executed or filed.
“Permitted
Liens” means
(i)
any Lien for Taxes not yet due or delinquent or being contested in good faith
by
appropriate proceedings for which adequate reserves have been established in
accordance with GAAP, (ii) any statutory Lien arising in the ordinary course
of
business by operation of Law with respect to a Liability that is not yet
due or
delinquent, and (iii) any minor imperfection of title or similar Lien which
individually or in the aggregate with other such Liens could not reasonably
be
expected to materially adversely affect the ordinary course of business of
the
Company.
“Person”
means
and includes an individual, a corporation, a partnership, an association,
a
joint venture, a limited liability company, a trust, a syndicate, an
unincorporated organization and a Governmental Authority.
“Requirement
of Law”
means
any statute, ordinance, code, treaty, directive, law, rule or regulation
of any
Governmental Authority, and any Order of any court, arbitrator or Governmental
Authority.
“Securities
Act”
means
as of any date the Securities Act of 1933, as amended, or any similar federal
statute then in effect, and a reference to a particular section thereof shall
include a reference to the comparable section, if any, of any such similar
federal statute.
“Subsidiary”
means
Stratos Del Peru, S.A.C.
