KSSH Kingfish Holding Corporation (CE)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the Quarterly Period Ended March 31, 2015

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

Commission File Number 000-52375

 

Kingfish Holding Corporation

(Exact Name of Registrant as Specified in its Charter)

 

Delaware		20-4838580
(State or Other Jurisdiction of Incorporation or Organization)		(IRS Employer Identification No.)

 

2641 49th Street, Sarasota, Florida		34234
(Address of Principal Executive Offices)		(Zip Code)

 

(941) 870-2986

(Registrant’s Telephone Number, Including Area Code)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ¨ No x

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer” and “large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large Accelerated Filer:	¨	Accelerated Filer:	¨
Non-Accelerated Filer:	¨	Smaller Reporting Company:	x

  

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes x No ¨

 

As of May 13, 2015, the number of issued and outstanding shares of common stock of the registrant was 116,712,987.

 

 

 

KINGFISH HOLDING CORPORATION

 

TABLE OF CONTENTS

 

Item Number in Form 10-Q			Page
PART I – Financial Information
Item 1.	Financial Statements			3
	Balance Sheets – March 31, 2015 (Unaudited) and September 30, 2014			3
	Statements of Operations (Unaudited) for the Three and Six Months Ended March 31, 2015 and 2014			4
	Statements of Cash Flows (Unaudited) for the Six Months Ended March 31, 2015 and 2014			5
	Notes to Financial Statements (Unaudited)			6
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations			13
Item 3.	Quantitative and Qualitative Disclosures About Market Risk			18
Item 4.	Control and Procedures			18
PART II – Other Information
Item 1.	Legal Proceedings			19
Item 1A.	Risk Factors			19
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds			19
Item 3.	Defaults on Securities			19
Item 4.	Mine Safety Disclosures			19
Item 5.	Other Information			19
Item 6.	Exhibits			20

 

2

  

PART I - FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

KINGFISH HOLDING CORPORATION

BALANCE SHEETS

MARCH 31, 2015 AND SEPTEMBER 30, 2014

 

		03/31/15
		(unaudited)				09/30/14
ASSETS
Current assets:
Cash		$	23,296			$	13,377
Prepaid expense			-				10,000
Total Assets		$	23,296			$	23,377
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable		$	1,592,682			$	1,596,886
Accrued expenses			390,034				390,034
Total Current Liabilities			1,982,716				1,986,920
Long Term Liabilities:
Notes payable			247,459				271,894
Convertible notes payable to related party			210,000				90,000
Rescission liability			20,000				20,000
Total Long Term Liabilities			477,459				381,894
Total Liabilities			2,460,175				2,368,814
Stockholders' Deficit:
Common stock, par $0.0001, 200,000,000 shares authorized, 116,712,987 shares issued and outstanding at March 31, 2015 and September 30, 2014, respectively			11,672				11,672
Paid in capital			4,129,945				4,129,945
Retained deficit			(6,558,496	)			(6,467,054	)
Rescission liability			(20,000	)			(20,000	)
			(2,436,879	)			(2,345,437	)
Total Liabilities and Stockholders' Deficit		$	23,296			$	23,377

 

The accompanying notes are an integral part of the financial statements

 

3

 

KINGFISH HOLDING CORPORATION

STATEMENTS OF OPERATIONS - UNAUDITED

FOR THE THREE AND SIX MONTHS ENDED MARCH 31, 2015 AND 2014

 

		Three Months				Three Months				Six Months				Six Months
		Ended				Ended				Ended				Ended
		March 31, 2015				March 31, 2014				March 31, 2015				March 31, 2014
Expenses:
Insurance		$	-			$	5,000			$	-			$	10,000
Office supplies			30				-				30				-
Postage			46				92				88				91
Professional fees			17,533				21,161				114,761				23,853
Taxes and licenses			-				150				998				220
General and Administrative Expenses			17,609				26,403				115,877				34,164
Other Income:
Gain on exstinguishment of debt			-				-				24,435				-
Total Other Income			-				-				24,435				-
Net Loss Before Income Taxes			(17,609	)			(26,403	)			(91,442	)			(34,164	)
Provision for income taxes			-				-				-				-
Net Loss		$	(17,609	)		$	(26,403	)		$	(91,442	)		$	(34,164	)
Basic and diluted net loss per share		$	0.00			$	0.00			$	0.00			$	0.00
Basic and diluted weighted average common shares outstanding			116,712,987				116,712,987				116,712,987				116,712,987

 

The accompanying notes are an integral part of the financial statements.

 

4

 

KINGFISH HOLDING CORPORATION

STATEMENTS OF CASH FLOWS - UNAUDITED

FOR THE SIX MONTHS ENDED MARCH 31, 2015 AND 2014

 

		3/31/2015				3/31/2014
Cash Flows From Operating Activities:
Net loss		$	(91,442	)		$	(34,164	)
Adjustments to reconcile net loss to net cash used by operations:
Gain on extinguishment of debt			(24,435	)			-
Changes in operating assets and liabilities:
Escrow held by attorney			-				1,053
Prepaid expenses			10,000				(9,004	)
Accounts payable and accrued expenses			(4,204	)			17,992
Net Cash flows used by operating activities			(110,081	)			(24,123	)
Cash Flows From Financing Activities:
Proceeds from convertible notes payable to related party			120,000				26,383
Net Cash flows from financing activities			120,000				26,383
Net Increase in Cash			9,919				2,260
Cash at the beginning of year			13,377				-
Cash at the end of the year		$	23,296			$	2,260
Non-cash Transaction Disclosures:
Common stock issued for common stock payable		$	-			$	50,000

 

The accompanying notes are an integral part of the financial statements.

 

5

 

KINGFISH HOLDING CORPORATION

NOTES TO FINANCIAL STATEMENTS

March 31, 2015

(unaudited)

 

1.      Business:

 

Our Business:

 

Kingfish Holding Corporation (the “Company”) was incorporated in the State of Delaware on April 11, 2006 as Offline Consulting, Inc. It became Kesselring Holding Corporation on June 8, 2007 and on November 25, 2014 it changed its name to Kingfish Holding Corporation. The Company was engaged in (i) restoration services, principally to commercial property owners, (ii) the manufacture and sale of cabinetry and remodeling products, principally to contractors and (iii) multifamily and commercial remodeling and building services on customer owned properties.

 

The Company discontinued operations in 2009, sold our last subsidiary in May 2010 and effected a change in management and control at the same time. As part of this transition, old management took possession of the majority of the accounting and corporate records. The Company’s last annual report Form 10-KSB for the year ended September 30, 2008 was filed with the Securities and Exchange Commission (SEC) on December 29, 2008 and the Company’s last quarterly report Form 10-Q for the period ended June 30, 2009 was filed with the SEC on August 19, 2009.

 

On December 17, 2014, the Company reactivated its suspended reporting obligations under Section 15(d) of the Exchange Act by filing a Form 10-K for the fiscal year ended September 30, 2013 and Forms 10-Q for the quarters ended December 31, 2013, March 31, 2014 and June 30, 2014. The Company's activities are subject to significant risks and uncertainties, including failing to secure additional funding to reorganize and finding a suitable candidate to participate in its renewable energy initiatives.

 

2.      Summary of Significant Accounting Policies: 

 

Basis of presentation:

 

The accompanying financial statements are unaudited and have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) and reflect all adjustments, consisting solely of normal recurring adjustments, needed to fairly present the financial results for these periods. The financial statements and notes are presented as permitted by Form 10-Q. Accordingly, certain information and note disclosures normally included in financial statements prepared in accordance U.S. GAAP have been omitted.

 

The accompanying financial statements should be read in conjunction with the financial statements for the fiscal years ended September 30, 2014 and 2013 and notes thereto in the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2014. Operating results for the three and six months ended March 31, 2015 and 2014 are not necessarily indicative of the results that may be expected for the entire year. In the opinion of management, all adjustments, consisting only of normal recurring adjustments necessary for a fair statement of (a) the results of operations for the three and six month periods ended March 31, 2015 and 2014, (b) the financial position at March 31, 2015, and (c) cash flows for the six month periods ended March 31, 2015 and 2014, have been made.

 

6

 

KINGFISH HOLDING CORPORATION

NOTES TO FINANCIAL STATEMENTS

March 31, 2015

(unaudited)

 

2.      Summary of Significant Accounting Policies (continued):

 

The preparation of financial statements in accordance with Accounting Principles Generally Accepted in the United States of America contemplates that the Company will continue as a going concern, for a reasonable period. As reflected in the Company’s financial statements, the Company has a retained deficit of $6,558,496 on March 31, 2015. The Company used cash of ($110,081) and ($24,123) in operating activities during the six months ended March 31, 2015 and 2014, respectively. The Company has a working capital deficiency of ($1,959,420) at March 31, 2015 that is insufficient in management‘s view to sustain current levels of operations for a reasonable period without additional financing. These trends and conditions continue to raise substantial doubt surrounding the Company’s ability to continue as a going concern for a reasonable period. Ultimately, the Company’s ability to continue as a going concern is dependent upon management’s ability to continue to curtail current operating expense and obtain additional financing to augment working capital requirements and support acquisition plans. There can be no assurance that management will be successful in achieving these objectives or obtain financing under terms and conditions that are suitable. The accompanying financial statements do not include any adjustments associated with these uncertainties.

 

Use of estimates:

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets, if any at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period.

 

Cash:

 

Cash is maintained at a financial institution and, at times, balance may exceed federally insured limits. We have never experienced any losses related to the balance. Currently, the FDIC provides insurance coverage up to $250,000 per depositor at each financial institution and our cash balance did not exceed such coverage on March 31, 2015.

 

For purpose our statements of cash flows, the Company considers all highly liquid investments with a maturity of three months or less when purchased to be cash.

 

Prepaid expense:

 

Prepaid expense consisted of payments to professional for services to be rendered at a later date.

 

Income Taxes:

 

Deferred taxes are provided on the asset and liability method whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carry forwards and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax bases. Future tax benefits for net operating loss carry forwards are recognized to the extent that realization of these benefits is considered more likely than not. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized.

 

7

 

KINGFISH HOLDING CORPORATION

NOTES TO FINANCIAL STATEMENTS

March 31, 2015

(unaudited)

 

2.      Summary of Significant Accounting Policies (continued):

 

The Company follows the provisions of FASB ASC 740-10 “Uncertainty in Income Taxes” (ASC 740-10). A reconciliation of the beginning and ending amount of unrecognized tax benefits has not been provided since there are no unrecognized benefits for all periods presented. The Company has not recognized interest expense or penalties as a result of the implementation of ASC 740-10. If there were an unrecognized tax benefit, the Company would recognize interest accrued related to unrecognized tax benefit in interest expense and penalties in operating expenses.

 

Net income (loss) per share:

 

Basic income (loss) per share is computed by dividing net income (loss) available to common stockholders by the weighted average number of outstanding common shares during the period of computation. Diluted loss per share gives effect to potentially dilutive common shares outstanding. The Company gives effect to these dilutive securities using the Treasury Stock Method. Potentially dilutive securities include convertible financial instruments. The Company gives effect to these dilutive securities using the If-Converted-Method. At March 31, 2015, convertible notes payable to related party of $210,000 can potentially convert into 21,000,000 shares of common stock. These shares have been excluded from the diluted net loss per share calculations because the effect of including them would be anti-dilutive.

 

3.      Accounts Payable and Accrued Expenses:

 

Accounts payable and accrued expenses are comprised of the followings:

 

		March 31, 2015				September 30, 2014
Accounts Payable		$	1,592,682			$	1,596,886
Accrued expenses			390,034				390,034
		$	1,982,716			$	1,986,920

  

As a result of the lack of documentation of payments or settlement agreements for reason described in Note 1, the Company was not able to definitively determine that approximately $1,972,000 and $1,997,000 these liabilities at March 31, 2015 and September 30, 2014, respectively, were settled with our vendors. Therefore, these liabilities will remain on the Company’s books until the statute of limitation expires which the Company estimates to be approximately 2015.

 

8

 

KINGFISH HOLDING CORPORATION

NOTES TO FINANCIAL STATEMENTS

March 31, 2015

(unaudited)

 

4.      Notes Payable:

 

Notes payable consisted of the following at March 31, 2015 and September 30, 2014:

 

			03/31/2015						09/30/2014
4.9% Note payable due August 2010 (a)			$	-					$	13,246
Auto Loan (a)				-						11,189
Prime Plus 4.5%, 1,000,000 bank credit facility (b)				180,141						180,141
Loan on equipment				67,318						67,318
			$	247,459					$	271,894

 

	(a)	Documentation was obtained substantiating that these notes were satisfied in full. Therefore, the company recorded a gain on extinguishment of debt of $24,435 during the quarter ended December 31, 2014.
	(b)	On May 14, 2008, the Company entered into an agreement with a financial institution to provide up to $1,000,000 in secured credit, subject to certain limitations. This facility replaced a previous facility with another bank that had a limit of $300,000. Under this new facility, the Company is permitted to draw on an advance of up to 80% of certain eligible accounts receivable arising from our manufactured products segment. The interest rate is prime plus 4.5%. The line is secured by the accounts receivable, inventory, and the unencumbered fixed assets of that segment. As part of the transaction, the lender was granted 150,000 shares of common stock having a fair market value of $15,000.

 

The above notes were entered into with various financial institutions when the Company was an operating company. However, due to the lack of documentation of payments or settlement agreements for reason described in Note 1, the Company was not able to definitively determine that these notes were settled even though it appeared that the financial institutions repossessed the underlying collaterals. Therefore, these notes will remain on our books until the statute of limitation expires which we estimate to be between 2015 and 2017.

 

5.      Convertible Notes Payable to Related Party:

 

On February 20, 2013, the Company entered into a convertible note with a director for $5,000. The note bears interest rate at 3% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 15, 2013. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price which is the average of the mean of the bid and ask prices for the ninety consecutive full trading days in which the shares were traded ending at the close of trading on the fifth business day preceding the conversion date. As a result of the variable feature associated with the conversion option, pursuant to ASC Topic 815, the Company bifurcated the conversion option, to determine the fair value of the conversion option. At the issuance date and thereafter, the Company concluded that the derivative liability and the debt discount were not material to the financial statements.

 

On February 20, 2013, the Company entered into a convertible note with a director for $30,000. The note bears interest rate at 3% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 15, 2013. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price which is the average of the mean of the bid and ask prices for the ninety consecutive full trading days in which the shares were traded ending at the close of trading on the fifth business day preceding the conversion date. As a result of the variable feature associated with the conversion option, pursuant to ASC Topic 815, the Company bifurcated the conversion option, to determine the fair value of the conversion option. At the issuance date and thereafter, the Company concluded that the derivative liability and the debt discount were not material to the financial statements.

 

9

 

KINGFISH HOLDING CORPORATION

NOTES TO FINANCIAL STATEMENTS

March 31, 2015

(unaudited)

 

5.      Convertible Notes Payable to Related Party (continued):

 

On July 2, 2013, the director elected to convert the above two notes into the Company’s common stock. The conversion price was determined to be $0.0029, resulting in the issuance of 11,999,999 shares of common stock to the director.

 

On August 22, 2013, the Company entered into a convertible note with a director for $50,000. The note bears interest rate at 4% per annum and all unpaid principle and interest were due on demand by the director but no earlier than August 30, 2013. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price which is the average of the closing prices for the ninety consecutive full trading days in which the shares were traded ending at the close of trading on the fifth business day preceding the conversion date. As a result of the variable feature associated with the conversion option, pursuant to ASC Topic 815, the Company bifurcated the conversion option, to determine the fair value of the conversion option. At the issuance date and thereafter, the Company concluded that the derivative liability and the debt discount were not material to the financial statements.

 

On August 31, 2013, the director elected to convert the above note into the Company’s common stock. The conversion price was determined to be $0.00075, resulting in the conversion into 66,666,667 shares of common stock to the director. These shares were issued to the director subsequent to September 30, 2013, therefore, the Company recorded a common stock payable for $50,000 at September 30, 2013.

 

On October 21, 2013, the Company entered into a convertible note with a director for $10,000. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of the public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

On November 13, 2013, the Company entered into a convertible note with a director for $10,000. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of the public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

On January 13, 2014, the Company entered into a convertible note with a director for $10,000. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of the public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

On April 24, 2014, the Company entered into a convertible note with a director for $20,000. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of the public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

10

 

KINGFISH HOLDING CORPORATION

NOTES TO FINANCIAL STATEMENTS

March 31, 2015

(unaudited)

 

5.     Convertible Notes Payable to Related Party (continued):

 

On May 22, 2014, the Company entered into a convertible note with a director for $20,000. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of the public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

On September 17, 2014, the Company entered into a convertible note with a director for $20,000. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

On February 10, 2015, the Company entered into a convertible note with a director for $60,000 advanced during the quarter ended December 31, 2014. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at a fixed price of $.01 per share.

 

On May 13, 2015, the Company entered into a convertible note with a director for $20,000 advanced during the quarter ended March 31, 2015. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of the public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

On May 13, 2015, the Company entered into a convertible note with a director for $40,000 advanced during the quarter ended March 31, 2015. The note bears interest rate at 3.5% per annum and all unpaid principle and interest were due on demand by the director but no earlier than June 1, 2015 or 30 calendar days after the recommencement of the public company status as defined in the note agreement. The outstanding principle balance of the note is convertible into the Company’s shares of common stock at the conversion price of $0.01 per share.

 

6.      Preferred Stock

 

The Company is authorized to issue up to 20,000,000 shares of Preferred Stock with designations, rights and preferences determined from time to time by our Board of Directors. Accordingly, our Board of Directors is empowered, without shareholder approval, to issue Preferred Stock with dividend, liquidation, conversion, voting or other rights that could adversely affect the voting power or other rights of the holders of our Common Stock. The terms of the preferred stock have not been approved. As of March 31, 2015 and September 30, 2014, there was no Preferred Stock issued and outstanding, respectively.

 

11

 

KINGFISH HOLDING CORPORATION

NOTES TO FINANCIAL STATEMENTS

March 31, 2015

(unaudited)

 

7.      Rescission Liability:

 

On November 20, 2009, the Company issued 2,000,000 shares of its common stock to pay for services valued at $20,000. The issuance of these shares was declared invalid by the court since they were issued by prior management who did not have the authority to do so since they were validly removed on November 16, 2009. These shares remained outstanding at March 31, 2015 and will be returned to the Company’s transfer agent upon locating the holder of these shares.

 

8.      Recent Accounting Pronouncement

 

In August 2014, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2014-15, “Presentation of Financial Statements-Going Concern (Subtopic 205-40): Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern” (“ASU 2014-15”). ASU 2014-15 is intended to define management’s responsibility to evaluate whether there is substantial doubt about an organization’s ability to continue as a going concern and to provide related footnote disclosures. The amendments in this ASU are effective for reporting periods beginning after December 15, 2016, with early adoption permitted. Management is currently assessing the impact the adoption of ASU 2014-15 will have on our financial statements.

 

12

 

ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

The following discussion should be read in conjunction with the consolidated financial statements and notes thereto appearing elsewhere in this quarterly report. Historical results and trends which might appear should not be taken as indicative of future operations. Our results of operations and financial condition, as reflected in the accompanying statements and related notes, are subject to management’s evaluation and interpretations of business conditions, changing market conditions and other factors.

 

A NOTE ABOUT FORWARD-LOOKING STATEMENTS

 

This Quarterly Report on Form 10-Q (including the exhibits hereto) contains certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, such as statements relating to our financial condition, results of operations, plans, objectives, future performance or expectations, and business operations. These statements relate to expectations concerning matters that are not historical fact. Accordingly, statements that are based on management’s projections, estimates, assumptions, and judgments constitute forward-looking statements. These forward-looking statements are typically identified by words or phrases such as “believe,” “expect,” “anticipate,” “plan,” “estimate,” “approximately,” “intend,” “objective,” “goal,” “project,” and other similar words and expressions, or future or conditional verbs such as “will,” “should,” “would,” “could,” and “may.” These forward-looking statements are based largely on information currently available to our management and on our current expectations, assumptions, plans, estimates, judgments and projections about our business and our industry, and such statements involve inherent risks and uncertainties. Although we believe our expectations are based on reasonable estimates and assumptions, they are not guarantees of performance and there are a number of known and unknown risks, uncertainties, contingencies, and other factors (many of which are outside our control) which may cause actual results, performance, or achievements to differ materially from those expressed or implied by such forward-looking statements. Accordingly, there is no assurance that our expectations will in fact occur or that our estimates or assumptions will be correct, and we caution investors and all others not to place undue reliance on such forward-looking statements.

 

These potential risks and uncertainties include, but are not limited to, our ability to identify, secure and obtain suitable and sufficient financing to continue as a going concern; our ability to identify, enter into and close an appropriate a merger, acquisition, or other combination transaction with a business prospect; economic, political and market conditions; the general scrutiny and limitations placed on “blank check” and “shell” companies under applicable governmental regulatory oversight; interest rate risk; government and industry regulation that might affect future operations; potential change of control transactions resulting from merger, acquisition, or combination with a business prospect; the potential dilution in our equity (both economically and in voting power) that might result from future financing or from merger, acquisition, or combination activities; and other factors.

 

All written or oral forward-looking statements that are made or attributable to us are expressly qualified in their entirety by this cautionary notice. The forward-looking statements included herein are only made as of the date of this Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015 (this “Form 10-Q”). We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

 

Overview

 

Operations. Historically, we were engaged in the business of homebuilding and restoration operations in central Florida and in the manufacture of building products from operations located in the State of Washington. During the fiscal year ended September 30, 2010, the Company defaulted on its loan agreements with AMI Holdings, Inc. ("AMI") and on May 24, 2010 AMI foreclosed on and took possession of all of the Company’s then-existing operating entities. Following the foreclosure, the Company has not engaged in any business activities and has conducted only minimal operations.

 

13

 

During the fiscal year ended September 30, 2012, our management concluded that it may be feasible to acquire a target company or business seeking the perceived advantages of being a publicly held corporation and ,as a result, our management determined that it should explore opportunities to acquire other assets or business operations that will maximize shareholder value. However, it was determined that prior to undertaking a search for any such acquisition opportunities, the Company should take the steps necessary to (a) reconstitute a full board of directors, (b) update and complete its corporate records and corporate governance documents, including the payment of any franchise fees and taxes owed to the State of Delaware, (c) satisfy all its obligations owed to its transfer agent, (e) obtain an audit of its financial statements by independent registered public accountants, and (f) reactivate its suspended reporting obligations under Section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) (collectively, “Preparatory Actions”).

 

Following that determination, as an initial step, the Company made arrangements to take the Preparatory Actions and, as a result, the operations of the Company through December 17, 2014 were focused on preparing the Company for reactivation of its suspended reporting obligations under Section 15(d) of the Exchange Act. On December 17, 2014, the Company re-activated its filing obligations under the Exchange Act by filing a Form 10-K for the fiscal year ended September 30, 2013 and Quarterly Report on Forms 10-Q for the quarters ended December 31, 2013, March 31, 2014, and June 30, 2014 (the “Reactivation Date”).

 

Our plan is to seek a business venture in which to participate. The selection of a business opportunity in which to participate is complex and extremely risky and will be made by management in the exercise of its business judgment. No assurance can be given that we will be able to identify a suitable target or, if identified, that we will be able to successfully negotiate and agree upon terms acceptable to the Company or to successfully complete and close the proposed acquisition or business combination. No specific assets or businesses have yet been identified and there is no certainty that any such assets or business will be identified or any transactions will be consummated.

 

We expect to pursue our search for a business opportunity primarily through our officers and directors, although other sources, such as professional advisors, securities broker-dealers, venture capitalists, members of the financial community, and others, may present unsolicited proposals. Our activities are subject to several significant risks that arise primarily as a result of the fact that we have no specific target company or business and may acquire or participate in a business opportunity based on the decision of management which will, in all probability, act without the consent, vote, or approval of our shareholders. For a more detailed discussion of the manner in which we will pursue the search for and participation in a business venture, please see “Item 1: Business” of our Form 10-K filed the fiscal year ended September 30, 2014.

 

Financial Condition. We have not recorded revenues from operations during the fiscal quarter covered by our financial statements included in this Form 10-Q and are not currently engaged in any business activities that provide cash flows. We do not expect to generate any revenues during the current fiscal year. Our principal business objective for the current fiscal year and beyond such time will be to achieve long-term growth potential through a combination with a business. We will not restrict our potential candidate target companies to any specific business, industry or geographical location and, thus, may acquire any type of business. During the remainder of this fiscal year and the next fiscal year we anticipate incurring costs related to: (i) investigating and analyzing potential business combination transactions; (ii) the preparation and filing of Exchange Act reports, and (iii) consummating an acquisition, if any. We believe we will be able to meet these costs through use of funds in our treasury and additional amounts, as necessary, to be loaned by or invested in us by our shareholders, management or other investors.

 

14

 

We have no specific plans, understandings or agreements with respect to the raising of such funds, and we may seek to raise the required capital by the issuance of equity or debt securities or by other means. Since we have no such arrangements or plans currently in effect, our inability to raise funds for the consummation of an acquisition may have a severe negative impact on our ability to become a viable company.

 

We have negative working capital, negative shareholders’ equity and have not earned any revenues from operations since the fiscal year ended September 30, 2014. James K. Toomey, the Company’s principal stockholder and a director (“Mr. Toomey”), has loaned the Company monies in the past to cover our operations and Preparatory Actions. However, we have no formal commitment that he will continue to provide the Company with working capital sufficient until we consummate a merger or other business combination with a target company or business operation. We are currently devoting our efforts to locating such targets. Our ability to continue as a going concern is dependent upon our ability to develop additional sources of capital, locate and complete a merger with another company, and ultimately, achieve profitable operations. Our historical operating results disclosed in this Form 10-Q are not meaningful to our future results.

 

Going Concern Issues

 

In its report dated December 29, 2014, our auditors, Warren Averett, LLC expressed an opinion that there is substantial doubt about our ability to continue as a going concern. Our financial statements do not include any adjustments that may result from the outcome of this uncertainty. We have generated no operating revenues for the fiscal year ended September 30, 2014 or during the six-months ended March 31, 2015, and we had an accumulated deficit of $2,436,879 as of March 31, 2015. Furthermore, at March 31, 2015, we had a retained deficit of $6,558,496 and a working capital deficit of $1,959,420. As a result of our working capital deficit and anticipated operating costs for the next 12 months, we do not have sufficient funds available to sustain our operations for a reasonable period without additional financing. Our continuation as a going concern is dependent upon future events, including our ability to raise additional capital and to generate positive cash flows.

 

Results of Operations

 

Comparison of Three Months Ended March 31, 2015 and 2014

 

Revenues. Because we currently do not have any business operations, we have not had any revenues during the three months ended March 31, 2015 and March 31, 2014.

 

General and Administrative Expenses. We had operating expenses of $17,609 and $26,403 for the three months ended March 31, 2015 and March 31, 2014, respectively. These expenses consisted of general and administrative expenses which were primarily comprised of professional fees associated with various corporate and accounting matters. The decrease in such expenses for the three months ended March 31, 2015 as compared to the same period ended March 31, 2014 last year was due to the increased level of activities taken in 2014 to complete the Preparatory Actions and make all of the required filings with the SEC to reactivate the Company’s suspended reporting obligations under Section 15(d) of the Exchange Act. Following completion of these activities in the quarter ended December 31, 2014, our general and administrative expenses have decreased and are anticipated to remain relatively low until such time as we effect a merger or other business combination with an operating business, if at all.

 

Net Income (Loss). We incurred net losses for the three months ended March 31, 2015 and March 31, 2014 of $17,609 and $26,403, respectively. The decrease in net loss was directly attributable to a redirection of general and administrative expenses following the Reactivation Date.

 

15

 

Comparison of Six Months Ended March 31, 2015 and 2014

 

Revenues. Because we currently do not have any business operations, we have not had any revenues during the six months ended March 31, 2015 and March 31, 2014.

 

General and Administrative Expenses. We had operating expenses of $115,877 and $34,164 for the six months ended March 31, 2015 and March 31, 2014, respectively. These expenses consisted of general and administrative expenses which were primarily comprised of professional fees associated with various corporate and accounting matters. The increase in such expenses for the six months ended March 31, 2015 as compared to the same period ended March 31, 2014 was due to the increased level of activities taken in the quarter ended December 31, 2014 to complete the Preparatory Actions and make all of the required filings with the SEC to reactivate the Company’s suspended reporting obligations under Section 15(d) of the Exchange Act. Following the Reactivation Date our general and administrative expenses have decreased and are anticipated to remain relatively low until such time as we effect a merger or other business combination with an operating business, if at all.

 

Other Income. During the quarter ended December 31, 2014, we were able to obtain documentation to substantiate that certain notes payable were previously settled in full. Therefore, we recorded a gain on extinguishment of debt in the amount of $24,435 during the first quarter of the six month period ended March 31, 2015.

 

Net Income (Loss). We incurred net losses for the six months ended March 31, 2015 and March 31, 2014 of $91,442 and $34,164, respectively. The increase in net loss was directly attributable to an increase in general and administrative expenses in connection with the Preparatory Actions taken prior to the Reactivation Date.

 

Liquidity and Capital Resources

 

At March 31, 2015, we had a working capital deficit of $1,959,420 compared to a working capital deficit of $1,963,543 at September 30, 2014. Current liabilities decreased to $1,982,716 at March 31, 2015 from $1,986,920 at September 30, 2014 due to a decrease in accounts payable. Total assets decreased from $23,377 at September 30, 3014 to $23,296 at March 31, 2015 due to a decreased in prepaid expenses of $10,000, particularly offset by a $9,919 increase in cash.

 

We had no material commitments for capital expenditures as of March 31, 2015. However, if we are able to execute our business plan as anticipated in the future, we would likely incur substantial capital expenditures and require additional financing to fund such expenditures.

 

During six months ended March 31, 2015, we received the following financings:

 

•   on December 19, 2014, Mr. Toomey advanced $60,000 to the Company;

 

•   on March 5, 2015, Mr. Toomey advanced $20,000 to the Company; and

 

•   on March 16, 2015, Mr. Toomey advanced $40,000 to the Company.

 

These funds were used by the Company to pay for the Company’s ongoing business operations, consisting primarily of professional fees, and to pay the costs associated with certain of its the Preparatory Actions through the Reactivation Date.

 

16

 

The funds advanced on December 19, 2014, were acknowledged and formalized by the parties pursuant to a Convertible Promissory Note Purchase Agreement, effective as of February 10, 2015 (the “February 2015 Note Agreement”), by and between the Company and Mr. Toomey, and issuing a convertible promissory note in favor of Mr. Toomey in aggregate principal amount of $60,000 bearing interest at a fixed rate of 3.5% per annum, payable from December 19, 2014, the date of that the actual loan was provided to the Company (the “February 2015 Promissory Note”). The February 2015 Promissory Note is due upon demand, but no earlier than June 1, 2015, and is convertible into shares of our common stock Company by Mr. Toomey at a fixed conversion price equal to $0.01 per share (subject to anti-dilution adjustments).

 

The funds advanced in March 2015 were acknowledged and formalized by the parties pursuant to a Convertible Promissory Note Purchase Agreement, effective as of May 13, 2015 (the “May 2015 Note Agreement”), by and between the Company and Mr. Toomey. Each of the advances made in March 2015 by Mr. Toomey in the amounts of $20,000 and $40,000 are evidenced by convertible promissory notes in favor of Mr. Toomey for the principal amount thereof, bearing fixed interest rates of 3.5% per annum, payable from the date of the actual advance (the “May 2015 Promissory Notes”). The May 2015 Promissory Notes are due upon demand, but no earlier than June 1, 2015, and are convertible into shares of our common stock Company by Mr. Toomey at a fixed conversion price equal to $0.01 per share (subject to anti-dilution adjustments).

 

Mr. Toomey has not yet executed his conversion rights under the February 2015 Promissory Note or any of the May 2015 Promissory Notes and there is no assurance that he will exercise such rights.

 

Because we do not have any revenues from operations, absent a merger or other business combination with an operating company or a public or private sale of our equity or debt securities, the occurrence of either of which cannot be assured, we will continue to be dependent upon future loans or equity investments from our present shareholders or management to fund operating shortfalls and do not foresee a change in this situation in the immediate future. We will attempt to raise capital for our current operational needs through loans from related parties, debt financing, equity financing or a combination of financing options. However, there are no existing understandings, commitments or agreements for extension of outstanding notes or an infusion of capital, and there are no assurances to that effect. Further, our need for capital may change dramatically if unknown claims or debts surface or if we acquire an interest in a business opportunity. There can be no assurances that any additional financings will be available to us on satisfactory terms and conditions, if at all. Unless we can obtain additional financing, our ability to continue as a going concern is doubtful. Although Mr. Toomey has provided the necessary funds for the Company in the past, there is no existing commitment to provide additional capital and he is unlikely to fund the Company to pay for any claims made against the Company for substantial debts or other obligations. In such situation, there can be no assurance that we shall be able to receive additional financing, and if we are unable to receive sufficient additional financing upon acceptable terms, it is likely that our business would cease operations or, at the very least, cease to be a reporting Company under the Exchange Act.

 

Now that the Company has reactivated its suspended reporting obligations under the Exchange Act, former shareholders, officers, employees, creditors, or others may approach the Company and allege that there are outstanding claims for which the Company is responsible. In fact, the Company has been contacted by one shareholder suggesting that the Company may owe certain contractual obligations to that shareholder. However, the Company is unclear as to the nature of any such obligation and, in any event, does not believe that any obligations are owed to that shareholder. In view of the Company’s extremely limited resources, any such claims, if formally made, and/or proceedings commenced with respect thereto by such shareholder or any other third party or parties against the Company, would have a material adverse impact on the Company and may cause the Company to cease as a going concern. In such event, it is unlikely that the Company would be able to obtain any future financings from Mr. Toomey or others in order to maintain its current operations and it also would render unlikely that the Company would be able to pursue its business plan or that it will continue to be a reporting company under the Exchange Act.

 

17

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

As a “Smaller Reporting Company”, the Company is not required to provide the information required by this Item

 

ITEM 4. CONTROLS AND PROCEDURES

 

Evaluation of Disclosure Controls and Procedure

 

Our disclosure controls and procedures are designed to provide reasonable assurance that information required to be disclosed in our reports under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms.

 

As of the end of the period covered by this report, an evaluation was carried out under the supervision and with the participation of our sole officer and employee of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities and Exchange Act of 1934, as amended). Based on that evaluation, our sole officer and employee concluded that the Company’s disclosure controls and procedures were not effective as of March 31, 2015 as a result of the material weakness in internal control over financial reporting because of inadequate segregation of duties over authorization, review and recording of transactions, as well as the financial reporting of such transactions. Although financial resources are limited, management continues to evaluate opportunities to mitigate the above material weaknesses. Despite the existence of these material weaknesses, we believe the financial information presented herein is materially correct and in accordance with generally accepted accounting principles.

 

Changes in Internal Control over Financial Reporting

 

There were no significant changes in our internal controls or in other factors that could significantly affect our disclosure controls and procedures subsequent to the date of the above referenced evaluation. Furthermore, there was no change in our internal control over financial reporting or in other factors during the quarterly period covered by this report that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

18

 

PART II

 

ITEM 1. LEGAL PROCEEDINGS

 

There are presently no pending legal proceedings to which the Company, any of its subsidiaries, any executive officer, any owner of record or beneficially of more than five percent of any class of voting securities is a party or as to which any of its property is subject, and no such proceedings are known to the Company to be threatened or contemplated against it.

 

ITEM 1A. RISK FACTORS

 

As a “Smaller Reporting Company”, the Company is not required to provide the information required by this Item.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

During the quarter ended March 31, 2015, Mr. Toomey advanced the Company $20,000 on March 5, 2015 and $40,000 on March 16, 2015 in exchange for the March 2015 Promissory Notes, bearing fixed interest rates of 3.5% per annum, payable from the date of the actual advance. Each of the March 2015 Promissory Notes is convertible into the common stock of the Company by Mr. Toomey at a fixed conversion price of $0.01 per share. These funds from the amounts advanced by Mr. Toomey during the quarter ended March 31, 2015, were used by the Company to pay for the Company’s ongoing business operations, consisting primarily of professional fees.

 

ITEM 3. DEFAULTS ON SECURITIES

 

Not Applicable.

 

ITEM 4. MINE SAFETY DISCLOSURES

 

Not Applicable.

 

ITEM 5. OTHER INFORMATION

 

Although there are no legal proceedings pending or, to the knowledge of the Company, currently threatened or contemplated against it, now that the Company has reactivated its suspended reporting obligations under the Exchange Act, former shareholders, officers, employees, creditors, or others may allege that there are outstanding claims for which the Company is responsible. In fact, the Company has been contacted by one shareholder suggesting that the Company may owe certain contractual obligations to that shareholder. However, the Company is unclear as to the nature of any such obligation and, in any event, does not believe that any obligations are owed to that shareholder. In the case any such claims are formally made or presented to the Company by any third parties, we will review and analyze such claim on a case by case basis and respond to it as we deem appropriate.

 

19

 

ITEM 6. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

 

Exhibit Number		Description of Exhibits
4.1		Convertible Promissory Note No. 11 in favor of James K. Toomey in principal amount of $20,000 for March 5, 2015 loan.*
4.1		Convertible Promissory Note No. 12 in favor of James K. Toomey in principal amount of $40,000 for March 16, 2015 loan.*
10.1		Convertible Promissory Note Purchase Agreement, effective as May 13, 2015, by and between Kingfish Holding Corporation and James K. Toomey.*
31.1		Certification of the Company’s Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(a)), with respect to the registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015.*
31.2		Certification of the Company’s Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(a)), with respect to the registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015.*
32.1		Certificate of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted under Section 906 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(b)).*
32.2		Certificate of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted under Section 906 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(b)).*
101.INS		XBRL Instance Document *
101.SCH		XBRL Taxonomy Extension Schema Document *
101.CAL		XBRL Taxonomy Extension Calculation Linkbase Document *
101.DEF		XBRL Taxonomy Definition Linkbase Document *
101.LAB		XBRL Taxonomy Extension Label Linkbase Document *
101.PRE		XBRL Taxonomy Extension Presentation Linkbase Document *

_________

* Exhibit Filed Herewith

 

20

 

SIGNATURES

 

In accordance with Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. 

 

	KINGFISH HOLDING CORPORATION
Date: May 13, 2015	By	/s/ Ted Sparling
		Ted Sparling
		Chief Executive Officer (Principal Executive Officer)

 

 

21

 

INDEX TO EXHIBITS

 

Exhibit Number		Description of Exhibits
4.1		Convertible Promissory Note No. 11 in favor of James K. Toomey in principal amount of $20,000 for March 5, 2015 loan. *
4.2		Convertible Promissory Note No. 12 in favor of James K. Toomey in principal amount of $40,000 for March 16, 2015 loan. *
10.1		Convertible Promissory Note Purchase Agreement, effective as May 13, 2015, by and between Kingfish Holding Corporation and James K. Toomey. *
31.1		Certification of the Company’s Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(a)), with respect to the registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015 *
31.2		Certification of the Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(a)), with respect to the registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2015 *
32.1		Certificate of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted under Section 906 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(b)). *
32.2		Certificate of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted under Section 906 of the Sarbanes-Oxley Act of 2002 (Rule 15d-14(b)). *
101.INS		XBRL Instance Document *
101.SCH		XBRL Taxonomy Extension Schema Document *
101.CAL		XBRL Taxonomy Extension Calculation Linkbase Document *
101.DEF		XBRL Taxonomy Definition Linkbase Document *
101.LAB		XBRL Taxonomy Extension Label Linkbase Document *
101.PRE		XBRL Taxonomy Extension Presentation Linkbase Document *

___________

* Exhibit Filed Herewith

 

 

22

---

 

EXHIBIT 4.1

 

THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE, TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING ACQUIRED ANY SUCH UNITS BY THE ISSUER FOR ANY PURPOSES, EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE SECURITIES LAWS OF ALL OTHER APPLICABLE JURISDICTIONS OR (2) THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION SHALL BE ESTABLISHED TO THE REASONABLE SATISFACTION OF THE ISSUER.

 

CONVERTIBLE PROMISSORY NOTE

 

Note No. 11	May 13, 2015
U.S. $20,000.00	Tampa, Florida

 

FOR VALUE RECEIVED, the undersigned Kingfish Holding Corporation, a Delaware corporation (the “Company”), promises to pay to the order of James K. Toomey (“Payee”, and Payee and any subsequent permitted holder(s) of this Note being referred to collectively as “Holder”), at Holder’s address set forth below (or by wire transfer to Holder’s wire address set forth below) or at such other place as Holder may designate in writing pursuant to the notice provisions below, the principal sum of TWENTY THOUSAND DOLLARS ($20,000.00) (the “Principal Amount”), together with accrued and unpaid interest thereon, said principal and interest to be due and payable as stated below.

 

This convertible promissory note (the “Note”) is issued pursuant to the terms of that certain Convertible Promissory Note Purchase Agreement (as amended, the “Purchase Agreement”) dated as of May 13, 2015 by and between the Company and the Payee. Capitalized terms used herein without definition shall have the meanings given to such terms in the Purchase Agreement.

 

1. Interest Rate. The Company promises to pay simple interest on the outstanding principal amount of this Note from March 5, 2015 (the date that the underlying loan was originally made by the Holder to the Company) until paid in full at the fixed rate of three and one-half percent (3.5%) per annum. Interest shall be calculated on a 365-day year basis and shall be due and payable as set forth below.

 

2. Maturity. Unless this Note has been previously converted in accordance with the terms of Section 5 hereof, all outstanding principal and accrued and unpaid interest on this Note, plus all fees, costs and expenses then due under this Note, become fully due and payable upon demand by the Holder (the “Maturity Date”); provided, however, that no demand for payment shall be made prior to June 1, 2015.

 

3. Payments. No principal amount of this Note or any accrued interest on the principal balance of this Note is due or payable until the Maturity Date.

 

1

 

4. Prepayment. The Company may not prepay this Note prior to the Maturity Date without the consent of the Holder. Following the Maturity Date, the Company may prepay any part or all of any amount payable under this Note, including principal or interest or both, at any time or times without any premium or penalty whatsoever. Any and all prepayments shall be applied first to reimbursement of Holder for any costs or expenses incurred by Holder to enforce or collect amounts owed hereunder, then to repayment of any accrued and unpaid interest hereunder, and then to principal outstanding hereunder.

 

5. Optional Conversion of Note.

 

(a) Optional Conversion Rights. The outstanding principal balance of this Note shall be convertible, in whole or in part, at the option of the Holder at any time prior to the Maturity Date, into shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”), at the then-Conversion Price (as defined in Section 5(d) below) (the “Optional Conversion Right”), commencing upon the earliest of any of the following:

 

(i) the date that the Company takes all corporate action necessary to increase the number of authorized shares of Common Stock in an amount sufficient to issue those shares of Common Stock issuable upon the exercise of the Optional Conversion Right, in whole or in part, by the Holder (the “Authorization Actions”),

 

(ii) Sale of the Company (as defined in Section 5(d) below), or

 

(iii) immediately prior to the closing of any equity financing or issuance of debt securities by the Company in a transaction or a series of related transactions resulting in aggregate proceeds of at least One Hundred Thousand Dollars ($100,000).

 

The date that the Optional Conversion Right first becomes available to the Holder is referred to herein as “Determination Date.” To the extent that the Holder decides to exercise his or her Optional Conversion Right, then any unpaid interest on this Note shall be converted into Common Stock on the same terms as the principal of the Note.

 

(b) Covenants of Company. The Company shall take all action as may be necessary to assure that such shares of Common Stock (and any other securities and property) may be issued and delivered as provided herein without violation of any applicable law or regulation, or of any requirements, of any domestic securities exchange or inter-dealer quotation system upon which the Common Stock may be listed.

 

(c) Exercise of Optional Conversion Right. The Optional Conversion Right may be exercised by the Holder, in whole but not in part, at any time, and from time to time after the Determination Date and prior to the Maturity Date, by the surrender and presentment of this Note accompanied by a duly executed Notice of Exercise in the form attached hereto (the “Exercise Notice”), presented to the Company, at its principal office or at such other place as the Company may designate by notice in writing to the Holder.

 

2

 

(d) Definitions. For purposes of this Note:

 

(i) The term “Conversion Price” shall be $0.01 per share of Common Stock, subject to adjustment as provided in Section 5(e) hereof.

 

(ii) The term “Conversion Shares” shall be those shares of Common Stock issued upon Conversion of this Note.

 

(iii) The term “Sale of the Company” shall mean (A) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the shareholders of the Company immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (B) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred; provided, however, that a Sale of the Company shall not include any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the Company is cancelled or converted or a combination thereof; or (C) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company.

 

(e) Anti-Dilution Provisions. The number and kind of securities and other property that may be acquired upon the conversion of this Note and the Conversion Price shall be subject to adjustment, from time to time, upon the happening of any of the following events:

 

(i) In the event that the Company shall declare, pay, or make any dividend upon its outstanding shares of Common Stock payable in Common Stock or shall effect a subdivision of the outstanding Common Stock into a greater number of shares of Common Stock, then the number of Conversion Shares that may thereafter be purchased upon the exercise of the rights represented hereby shall be increased in proportion to the increase in the number of outstanding shares of Common Stock through such dividend or subdivision, and the Conversion Price shall be decreased in such proportion. In case the Company shall at any time combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the number of Conversion Shares that may thereafter be acquired upon the exercise of the rights represented hereby shall be decreased in proportion to the decrease through such combination and the Conversion Price shall be increased in such proportion.

 

(ii) In the event that the Company declares, pays, or makes any dividend or other distribution upon its outstanding shares of Common Stock payable in securities or other property (excluding cash dividends and dividends payable in shares of Common Stock, but including, without limitation, shares of any other class of the Company’s stock or stock or other securities convertible into or exchangeable for shares of Common Stock or any other class of the Company’s stock or other interests in the Company or its assets), a proportionate part of those securities or that other property shall be set aside by the Company and delivered to the Holder in the event that the Holder exercises his Optional Conversion Right with respect to this Note. The securities and other property then deliverable to the Holder upon the conversion of this Note shall be in the same ratio to the total securities and property set aside for the Holder as the number of Conversion Shares with respect to which this Note is then converted is to the total number of Conversion Shares that may be acquired pursuant to this Note at the time the securities or property were set aside for the Holder.

 

3

  

(f) Conversion Price Adjustments. Except as otherwise provided in this Section 5, upon any adjustment of the Conversion Price, the Holder shall be entitled to purchase, based upon the new Conversion Price, the number of shares of Common Stock, calculated to the nearest full share, obtained by: (i) multiplying the (A) number of Conversion Shares that may be acquired pursuant to this Note immediately prior to the adjustment of the Conversion Price by (B) the Conversion Price in effect immediately prior to its adjustment, and (ii) dividing the product so obtained in clause (i) by the new Conversion Price.

 

(g) Prior Notice of a Sale of the Company. Notwithstanding any provision of this Note to the contrary, in the event that the Company consummates a Sale of the Company prior to the conversion or repayment in full of this Note, the Company will give the Holder at least five days prior written notice of the anticipated closing date of such Sale of the Company.

 

6. Expenses. In the event of any failure of the Company to pay all amounts due upon a demand made pursuant to Section 2 of this Note, the Company shall pay all reasonable attorneys’ fees and court costs incurred by Holder in enforcing and collecting this Note.

 

7. Waiver. The Company hereby waives demand, notice, presentment, protest and notice of dishonor.

 

8. Notices. Any notice or other communications to be given or that may be given pursuant to this Note shall be deemed to have been given: (x) three (3) calendar days after the deposit of such notice or communication in the United States Mail, registered or certified, return receipt requested, with proper postage affixed thereto; (y) on the first Business Day after depositing such notice of communication with Federal Express, Express Mail, or other expedited mail or package delivery service guaranteeing delivery no later than the next Business Day if next Business Day delivery service has been requested and paid for (or on such subsequent Business Day as such delivery service has been requested, guaranteed and paid for); or (z) upon delivery if hand delivered or telecopied to the appropriate address and person as provided hereinabove or to the person to whose attention the notice is to be given to the other parties in the manner hereinabove provided; provided, however, that any notice changing Holder’s address or wire address shall be effective only upon receipt by the Company.

 

9. Governing Law.

 

(a) This Note shall in all respects be governed by and construed in accordance with the laws of the State of Florida, without giving effect to the principles of conflict of laws thereof.

 

(b) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereunder shall be brought solely in the courts of the State of Florida located in Hillsborough County, Florida, or, if it has or can acquire jurisdiction, in the United States District Court for the Middle District of Florida (Orlando or Tampa Division), and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and waives any objection to the venue or the convenience of forum of any such courts. 

 

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10. Modification; Waiver. No term of this Note may be amended or waived without the prior written consent of the Company and the Holder.

 

11. Assignment. Neither the Company nor the Holder may assign or transfer this Note without the prior written consent of the other party (not to be unreasonably withheld) provided that, in no event shall this Note or any interest herein be transferable, in whole or in part, to any person or entity under circumstances that would be reasonably likely to violate or trigger a consent or other approval requirement under applicable laws, including but not limited to U.S. securities laws, the Foreign Corrupt Practices Act, FINSA, laws restricting money transfers and payments to persons or entities located in certain restricted countries, foreign nationals identified on any restricted list, and associated regulations as in existence at the time, and the laws and regulations of any other country. Any such written notice shall set forth in reasonable detail the identity of the new Holder(s) and the terms of transfer of this Note (including a release by the applicable Holder of any right to receive any payments hereunder) and the Company shall be obligated to register the transfer of this Note and make payments to any Holder hereunder only if the Company determines such transfer or payment is not restricted or prohibited by any such laws (and the due date of any such payment shall be extended by the length of time that any such legal restriction or prohibition exists). This Note shall inure to the benefit of Holder, its successors and assigns, and to any person to whom Holder may grant an interest in any of the indebtedness evidenced hereby in compliance with the foregoing restrictions, and shall be binding upon the Company and its successors and assigns. No person or entity not a direct party hereto shall be entitled to enforce any rights or obligations hereunder as a third party beneficiary or otherwise.

 

12. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.

 

13. Time of Essence. Time is of the essence of the payment and performance of this Note.

 

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14. Miscellaneous. The Company and Holder have participated jointly in the negotiation and drafting of this Note. In the event an ambiguity or question of intent or interpretation arises, this Note shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Note. No delay by Holder in enforcing its rights hereunder or otherwise, shall prejudice Holder’s rights to enforce this Note. Neither Party to this Note will be liable to the other for any failure or delay in performance under this Note due to circumstances beyond its reasonable control including, without limitation, Acts of God, labor disruption, war, terrorist threat or government action, or lack of availability of wire transfer systems or other international or national systems; provided, that if either party is unable to perform its obligations under this Note for one of these reasons it shall give prompt written notice thereof to the other party and the time for performance, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.

 

15. Agreement by Holder. By its acceptance of this Note, Holder agrees to be bound by the terms hereof.

 

16. Documentary Stamp Taxes. All required Florida documentary stamp taxes due in connection with this Note have been paid.

 

[Signature Page Follows]

 

6

 

	Kingfish Holding Corporation, a Delaware corporation
	By:	/s/ Ted Sparling
	Name:	Ted Sparling
	Title:	CEO

 

HOLDER:

 

/s/ James K. Toomey                                        

James K. Toomey

 

 

 

 

 

 

[Signature page to Convertible Promissory Note No. 11 of Kingfish Holding Corporation]

 

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NOTICE OF EXERCISE

 

(To be executed by the Holder desiring to exercise the right to convert this Note into Units of KINGFISH HOLDING CORPORATION, a Delaware corporation)

 

The undersigned Holder of a Convertible Promissory Note (Note No. 11) hereby elects to exercise his or her Optional Conversion Right, pursuant to the provisions of the Note dated May 13, 2015 issued to the Holder by Kingfish Holding Corporation, a Delaware corporation, to receive that number of shares of Common Stock into which the outstanding principal amount of, and accrued and unpaid interest on, this Note is convertible at the Conversion Price at the address set forth below.

 

Dated:                                     ,

 

	Printed Name:
	Signature:
	Address:

 

(Signature must conform in all respects to the name of holder as specified on the face of this Note.)

 

 

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EXHIBIT 4.2

 

THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE, TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING ACQUIRED ANY SUCH UNITS BY THE ISSUER FOR ANY PURPOSES, EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE SECURITIES LAWS OF ALL OTHER APPLICABLE JURISDICTIONS OR (2) THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION SHALL BE ESTABLISHED TO THE REASONABLE SATISFACTION OF THE ISSUER.

 

CONVERTIBLE PROMISSORY NOTE

 

Note No. 12	May 13, 2015
U.S. $40,000.00	Tampa, Florida

 

FOR VALUE RECEIVED, the undersigned Kingfish Holding Corporation, a Delaware corporation (the “Company”), promises to pay to the order of James K. Toomey (“Payee”, and Payee and any subsequent permitted holder(s) of this Note being referred to collectively as “Holder”), at Holder’s address set forth below (or by wire transfer to Holder’s wire address set forth below) or at such other place as Holder may designate in writing pursuant to the notice provisions below, the principal sum of FORTY THOUSAND DOLLARS ($40,000.00) (the “Principal Amount”), together with accrued and unpaid interest thereon, said principal and interest to be due and payable as stated below.

 

This convertible promissory note (the “Note”) is issued pursuant to the terms of that certain Convertible Promissory Note Purchase Agreement (as amended, the “Purchase Agreement”) dated as of May 13, 2015 by and between the Company and the Payee. Capitalized terms used herein without definition shall have the meanings given to such terms in the Purchase Agreement.

 

1. Interest Rate.  The Company promises to pay simple interest on the outstanding principal amount of this Note from March 16, 2015 (the date that the underlying loan was originally made by the Holder to the Company) until paid in full at the fixed rate of three and one-half percent (3.5%) per annum.  Interest shall be calculated on a 365-day year basis and shall be due and payable as set forth below.

 

2. Maturity.  Unless this Note has been previously converted in accordance with the terms of Section 5 hereof, all outstanding principal and accrued and unpaid interest on this Note, plus all fees, costs and expenses then due under this Note, become fully due and payable upon demand by the Holder (the “Maturity Date”); provided, however, that no demand for payment shall be made prior to June 1, 2015.

 

3. Payments.  No principal amount of this Note or any accrued interest on the principal balance of this Note is due or payable until the Maturity Date.

 

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4. Prepayment.  The Company may not prepay this Note prior to the Maturity Date without the consent of the Holder.  Following the Maturity Date, the Company may prepay any part or all of any amount payable under this Note, including principal or interest or both, at any time or times without any premium or penalty whatsoever.  Any and all prepayments shall be applied first to reimbursement of Holder for any costs or expenses incurred by Holder to enforce or collect amounts owed hereunder, then to repayment of any accrued and unpaid interest hereunder, and then to principal outstanding hereunder. 

 

5. Optional Conversion of Note. 

 

(a) Optional Conversion Rights.  The outstanding principal balance of this Note shall be convertible, in whole or in part, at the option of the Holder at any time prior to the Maturity Date, into shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”), at the then-Conversion Price (as defined in Section 5(d) below) (the “Optional Conversion Right”), commencing upon the earliest of any of the following:

 

(i) the date that the Company takes all corporate action necessary to increase the number of authorized shares of Common Stock in an amount sufficient to issue those shares of Common Stock issuable upon the exercise of the Optional Conversion Right, in whole or in part, by the Holder (the “Authorization Actions”),

 

(ii) Sale of the Company (as defined in Section 5(d) below), or

 

(iii) immediately prior to the closing of any equity financing or issuance of debt securities by the Company in a transaction or a series of related transactions resulting in aggregate proceeds of at least One Hundred Thousand Dollars ($100,000). 

 

The date that the Optional Conversion Right first becomes available to the Holder is referred to herein as “Determination Date.”  To the extent that the Holder decides to exercise his or her Optional Conversion Right, then any unpaid interest on this Note shall be converted into Common Stock on the same terms as the principal of the Note.

 

(b) Covenants of Company.  The Company shall take all action as may be necessary to assure that such shares of Common Stock (and any other securities and property) may be issued and delivered as provided herein without violation of any applicable law or regulation, or of any requirements, of any domestic securities exchange or inter-dealer quotation system upon which the Common Stock may be listed.

 

(c) Exercise of Optional Conversion Right.  The Optional Conversion Right may be exercised by the Holder, in whole but not in part, at any time, and from time to time after the Determination Date and prior to the Maturity Date, by the surrender and presentment of this Note accompanied by a duly executed Notice of Exercise in the form attached hereto (the “Exercise Notice”), presented to the Company, at its principal office or at such other place as the Company may designate by notice in writing to the Holder.

 

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(d) Definitions.  For purposes of this Note:

 

(i) The term “Conversion Price” shall be $0.01 per share of Common Stock, subject to adjustment as provided in Section 5(e) hereof.

 

(ii) The term “Conversion Shares” shall be those shares of Common Stock issued upon Conversion of this Note. 

 

(iii) The term “Sale of the Company” shall mean (A) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the shareholders of the Company immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (B) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred; provided, however, that a Sale of the Company shall not include any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the Company is cancelled or converted or a combination thereof; or (C) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company.

 

(e) Anti-Dilution Provisions.  The number and kind of securities and other property that may be acquired upon the conversion of this Note and the Conversion Price shall be subject to adjustment, from time to time, upon the happening of any of the following events:

 

(i) In the event that the Company shall declare, pay, or make any dividend upon its outstanding shares of Common Stock payable in Common Stock or shall effect a subdivision of the outstanding Common Stock into a greater number of shares of Common Stock, then the number of Conversion Shares that may thereafter be purchased upon the exercise of the rights represented hereby shall be increased in proportion to the increase in the number of outstanding shares of Common Stock through such dividend or subdivision, and the Conversion Price shall be decreased in such proportion.  In case the Company shall at any time combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the number of Conversion Shares that may thereafter be acquired upon the exercise of the rights represented hereby shall be decreased in proportion to the decrease through such combination and the Conversion Price shall be increased in such proportion.

 

(ii) In the event that the Company declares, pays, or makes any dividend or other distribution upon its outstanding shares of Common Stock payable in securities or other property (excluding cash dividends and dividends payable in shares of Common Stock, but including, without limitation, shares of any other class of the Company’s stock or stock or other securities convertible into or exchangeable for shares of Common Stock or any other class of the Company’s stock or other interests in the Company or its assets), a proportionate part of those securities or that other property shall be set aside by the Company and delivered to the Holder in the event that the Holder exercises his Optional Conversion Right with respect to this Note.  The securities and other property then deliverable to the Holder upon the conversion of this Note shall be in the same ratio to the total securities and property set aside for the Holder as the number of Conversion Shares with respect to which this Note is then converted is to the total number of Conversion Shares that may be acquired pursuant to this Note at the time the securities or property were set aside for the Holder.

 

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(f) Conversion Price Adjustments.  Except as otherwise provided in this Section 5, upon any adjustment of the Conversion Price, the Holder shall be entitled to purchase, based upon the new Conversion Price, the number of shares of Common Stock, calculated to the nearest full share, obtained by: (i) multiplying the (A) number of Conversion Shares that may be acquired pursuant to this Note immediately prior to the adjustment of the Conversion Price by (B) the Conversion Price in effect immediately prior to its adjustment, and (ii) dividing the product so obtained in clause (i) by the new Conversion Price.

 

(g) Prior Notice of a Sale of the Company.   Notwithstanding any provision of this Note to the contrary, in the event that the Company consummates a Sale of the Company prior to the conversion or repayment in full of this Note, the Company will give the Holder at least five days prior written notice of the anticipated closing date of such Sale of the Company.

 

6. Expenses.  In the event of any failure of the Company to pay all amounts due upon a demand made pursuant to Section 2 of this Note, the Company shall pay all reasonable attorneys’ fees and court costs incurred by Holder in enforcing and collecting this Note.

 

7. Waiver.  The Company hereby waives demand, notice, presentment, protest and notice of dishonor.

 

8. Notices.  Any notice or other communications to be given or that may be given pursuant to this Note shall be deemed to have been given: (x) three (3) calendar days after the deposit of such notice or communication in the United States Mail, registered or certified, return receipt requested, with proper postage affixed thereto; (y) on the first Business Day after depositing such notice of communication with Federal Express, Express Mail, or other expedited mail or package delivery service guaranteeing delivery no later than the next Business Day if next Business Day delivery service has been requested and paid for (or on such subsequent Business Day as such delivery service has been requested, guaranteed and paid for); or (z) upon delivery if hand delivered or telecopied to the appropriate address and person as provided hereinabove or to the person to whose attention the notice is to be given to the other parties in the manner hereinabove provided; provided, however, that any notice changing Holder’s address or wire address shall be effective only upon receipt by the Company.

 

9. Governing Law. 

 

(a) This Note shall in all respects be governed by and construed in accordance with the laws of the State of Florida, without giving effect to the principles of conflict of laws thereof.   

 

(b) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereunder shall be brought solely in the courts of the State of Florida located in Hillsborough County, Florida, or, if it has or can acquire jurisdiction, in the United States District Court for the Middle District of Florida (Orlando or Tampa Division), and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and waives any objection to the venue or the convenience of forum of any such courts. 

 

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10. Modification; Waiver. No term of this Note may be amended or waived without the prior written consent of the Company and the Holder. 

 

11. Assignment. Neither the Company nor the Holder may assign or transfer this Note without the prior written consent of the other party (not to be unreasonably withheld) provided that, in no event shall this Note or any interest herein be transferable, in whole or in part, to any person or entity under circumstances that would be reasonably likely to violate or trigger a consent or other approval requirement under applicable laws, including but not limited to U.S. securities laws, the Foreign Corrupt Practices Act, FINSA, laws restricting money transfers and payments to persons or entities located in certain restricted countries, foreign nationals identified on any restricted list, and associated regulations as in existence at the time, and the laws and regulations of any other country.  Any such written notice shall set forth in reasonable detail the identity of the new Holder(s) and the terms of transfer of this Note (including a release by the applicable Holder of any right to receive any payments hereunder) and the Company shall be obligated to register the transfer of this Note and make payments to any Holder hereunder only if the Company determines such transfer or payment is not restricted or prohibited by any such laws (and the due date of any such payment shall be extended by the length of time that any such legal restriction or prohibition exists). This Note shall inure to the benefit of Holder, its successors and assigns, and to any person to whom Holder may grant an interest in any of the indebtedness evidenced hereby in compliance with the foregoing restrictions, and shall be binding upon the Company and its successors and assigns. No person or entity not a direct party hereto shall be entitled to enforce any rights or obligations hereunder as a third party beneficiary or otherwise.   

 

12. Waiver of Jury Trial.  EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.  EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.

 

13. Time of Essence.  Time is of the essence of the payment and performance of this Note.

 

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14. Miscellaneous.  The Company and Holder have participated jointly in the negotiation and drafting of this Note.  In the event an ambiguity or question of intent or interpretation arises, this Note shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Note.  No delay by Holder in enforcing its rights hereunder or otherwise, shall prejudice Holder’s rights to enforce this Note.  Neither Party to this Note will be liable to the other for any failure or delay in performance under this Note due to circumstances beyond its reasonable control including, without limitation, Acts of God, labor disruption, war, terrorist threat or government action, or lack of availability of wire transfer systems or other international or national systems; provided, that if either party is unable to perform its obligations under this Note for one of these reasons it shall give prompt written notice thereof to the other party and the time for performance, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.

 

15. Agreement by Holder.  By its acceptance of this Note, Holder agrees to be bound by the terms hereof. 

 

16. Documentary Stamp Taxes.  All required Florida documentary stamp taxes due in connection with this Note have been paid.

 

[Signature Page Follows]

 

6

 

	Kingfish Holding Corporation, a Delaware corporation
	By:	/s/ Ted Sparling
	Name:	Ted Sparling
	Title:	CEO

 

HOLDER:

 

/s/ James K. Toomey                      

James K. Toomey

 

 

 

 

[SIGNATURE PAGE TO CONVERTIBLE PROMISSORY NOTE NO. 12 OF KINGFISH HOLDING CORPORATION]

 

7

 

NOTICE OF EXERCISE

 

(To be executed by the Holder desiring to exercise the right to convert this Note into Units of KINGFISH HOLDING CORPORATION, a Delaware corporation)

 

The undersigned Holder of a Convertible Promissory Note (Note No. 12) hereby elects to exercise his or her Optional Conversion Right, pursuant to the provisions of the Note dated May 13, 2015 issued to the Holder by Kingfish Holding Corporation, a Delaware corporation, to receive that number of shares of Common Stock into which the outstanding principal amount of, and accrued and unpaid interest on, this Note is convertible at the Conversion Price at the address set forth below.

 

Dated:                          , 

 

	Printed Name:
	Signature:
	Address:

 

(Signature must conform in all respects to the name of holder as specified on the face of this Note.)

 

 

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EXHIBIT 10.1

 

CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT

 

Convertible Promissory Note Purchase Agreement (this “Agreement”), effective as of May 13, 2015 is entered into by and among Kingfish Holding Corporation, a Delaware corporation (the “Company”), and James K. Toomey, an individual with his business address at 6425 28^th Avenue East, Bradenton, Florida 34208 (the “Investor”). Certain capitalized terms used in this Agreement are defined in Section 5.1 of this Agreement.

 

RECITALS

 

WHEREAS, the Company generally is in need of additional financial sources in order to conduct its business and, more specifically, to finance the costs and expenses associated with certain professional services (“Professional Services”);

 

WHEREAS, the Investor was willing to loan the necessary funds to the Company, subject to the conditions specified herein, to conduct its business and pay the costs and expenses of such Professional Services; and

 

WHEREAS, in connection with its cash requirements for such purposes, the Company has previously borrowed funds in March 2015 on two separate occasions totaling an aggregate of $60,000 from the Investor and the parties now are desirous of formalizing these loan advances.

 

NOW, THEREFORE, in consideration of the foregoing, and of the mutual representations, warranties, covenants and agreements contained in this Agreement and other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:

 

1.       Amount and Terms of Loans.

 

1.1     The Loans. The Company acknowledges receipt of loan advances in aggregate principal amount of Sixty Thousand Dollars ($60,000) in such principal amounts and on or about such dates as set forth in Exhibit A hereto (each such advance, a “Loan” and collectively the “Loans”). Each Loan shall be evidenced by a convertible promissory notes in the principal amount of such Loan issued to the Investor in substantially the form attached hereto as Exhibit B (each, a “Convertible Note” and collectively the, “Convertible Notes”), which Convertible Notes for all such Loans shall be issued and delivered by Company concurrently with the execution of this Agreement.

 

1.2     Loans Fully Funded. The Company acknowledges that the Investor has fully funded the Loans on or about March 5, 2015 and March 16, 2015 and the Company received the all of the proceeds therefrom on or about such dates.

 

1.3     Terms and Conditions of the Loans. Each of the Loans individually and all of the Loans in the aggregate were made by the Investor to the Company on the basis of the representations, warranties, covenants and agreements contained in this Agreement, and subject to the terms and conditions set forth of this Agreement.

 

2.      Representations, Warranties, and Covenants of the Company. The Company hereby represents and warrants to the Investor as follows:

 

2.1     Organization, Standing, and Power. The Company is a corporation duly incorporated, validly existing, and, as of the date of this Agreement, in good standing under the Laws of the State of Delaware, and has the requisite corporate power and authority to own, lease, operate and otherwise hold its properties and assets and to carry on its business as it is now being conducted.

 

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2.2     Authority; Due Execution.

 

(a) The Company had, at the time that each Loan was funded, and currently has all of the requisite corporate power and authority to execute and deliver this Agreement and each of the Convertible Notes (the Agreement and all of the Convertible Notes are referred to collectively as the “Loan Documents”), and to carry out and perform its obligations under the Loan Documents, and to consummate the transactions contemplated thereby. The execution, delivery, and performance by the Company of the Loan Documents, including the delivery of each of the Convertible Notes and the reservation of Common Stock issuable upon conversion of the Convertible Notes (the “Conversion Shares”), and the consummation of the transactions contemplated thereby. The Loan Documents have been duly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery by the Investor, of each of the Loan Documents will constitute legal, valid, and binding obligations of the Company, enforceable against it in accordance with their respective terms (except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratoriums, or similar Laws affecting creditors’ rights and remedies generally and except that the availability of the equitable remedy of specific performance and injunctive relief is subject to the discretion of the court before which any proceedings may be brought (the “Bankruptcy and Equity Exceptions”).

 

(b) The Board of Directors of the Company (the “Board of Directors” or the “Board”) has determined that this Agreement, the Loan transactions which are the subject of this Agreement, and the Convertible Notes are fair to and in the best interests of the Company and its stockholders and have approved and adopted this Agreement, the Loan transactions, and each of the Convertible Notes.

 

2.3     No Conflict or Required Approvals.

 

(a) Neither the execution and delivery of this Agreement or any of the Convertible Notes, nor the consummation by the Company of the transactions contemplated hereby or thereby, or compliance with any of the terms or provisions herein or any of the Convertible Notes by the Company will (i) conflict with or violate any provision of the certificate of incorporation or bylaws of the Company, (ii) violate, conflict with, constitute or result in a breach of any term, condition, or provision of, or constitute a default (with or without notice or the lapse of time, or both) under, or give rise to any right of termination, cancellation, or acceleration of any obligation or the loss of any material benefit under, or require a Consent pursuant to, or result in the creation of any material Lien upon any material assets or properties of the Company pursuant to any of the terms, provisions, or conditions of any material loan or credit agreement, note, bond, mortgage, indenture, deed of trust, license, agreement, contract, lease, Permit, concession, franchise, plan, or other instrument or obligation to which the Company is a party or by which any of its material assets or properties may be bound or affected, or (iii) conflict with or violate any judgment, order, writ, injunction, decree of any court, governmental, regulatory or administrative agency, commission, authority, instrumentality, or other public body, domestic or foreign (a “Governmental Entity”), or material Law applicable to the Company or any of its assets or properties; except in the case of clauses (ii) and (iii) of this Section 2.3(a), as would not have a material adverse effect on the Company or its ability to consummate and perform the terms of this Agreement.

 

(b) Neither the execution and delivery of each of the Loan Documents, nor the consummation of the transaction contemplated by the Loan Documents will require notice to, registration, declaration, or filing by the Company with, or the order, authorization, or Permit of, or exception or waiver by, or Consent of, or any action by, any Governmental Entity other than in connection or compliance with the provisions of applicable state corporate and securities Laws, and the United States federal securities Laws.

 

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2.4    Capitalization.

 

(a) The authorized capital stock of the Company, prior to giving effect to the conversion of the Convertible Notes and the Outstanding Notes hereby, consists of (i) 200,000,000 shares of Common Stock, of which 116,712,987 shares are issued and outstanding, and (ii) 20,000,000 of preferred stock, par value $0.0001 per share (the “Preferred Stock”), none of which are issued and outstanding.

 

(b) All issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable.

 

(c) No stockholder of the Company or any other person is entitled to any preemptive rights with respect to the purchase, sale, or issuance of securities by the Company. Except for the convertible promissory notes issued to the Investor pursuant the Outstanding Notes and as required pursuant to the terms of the Loan Documents: (i) there is no outstanding or authorized subscription, warrant, option, or other right, commitment or arrangement (written or oral, or contingent or otherwise) to which the Company is a party or by which it is bound, to purchase or acquire any shares of, or any security directly or indirectly convertible in or exchangeable or exercisable for, any capital stock of the Company (“Options”), (ii) the Company has no obligation (contingent or otherwise) to issue any Options or to issue or distribute to holders of any shares of its capital stock, any evidences of indebtedness, or assets of the Company, (iii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of its capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof, and (iv) there are no voting agreements or similar arrangements among the Company or any of its stockholders.

 

2.5     Issuance of Conversion Shares.

 

(a) The issuance, sale, and delivery of the Conversion Shares to the Investor upon conversion of the Convertible Notes has been duly authorized by all necessary corporate action on the part of the Company and the Conversion Shares, when issued, sold, and delivered in compliance with the provisions of the Loan Documents, will be duly and validly issued, fully paid, and nonassessable, and shall be free and clear of any Liens, or preemptive or other similar rights and will be issued in compliance with all applicable federal and securities laws.

 

(b) Assuming the accuracy of the representations and warranties of the Investor contained in Section 3 hereof, the offer, issue, and sale of the Convertible Notes and the Conversion Shares (collectively, the “Securities”) are and will be exempt from the registration under the Securities Act of 1933, as amended (the “Securities Act”), and are exempt from registration and qualification the securities laws of all other applicable jurisdictions.

 

2.6     Compliance with Laws; No Violations.

 

(a) The Company holds all Permits necessary for it to own, lease, and operate its assets and properties and to lawfully carry on its business as now conducted except as would not have a material adverse effect on the Company. All material Permits are in full force and effect, and the Company is in substantial compliance with all conditions and requirements of such Permits and all rules and regulations relating thereto.

 

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(b) The Company is not in conflict with, or in default under, or in violation of: (i) its certificate of incorporation or bylaws, or (ii) except as would not have a material adverse effect on the Company, any Law, Permit, order, judgment, writ, injunction, or decree applicable to the Company or by which the material assets or properties of the Company are bound or affected, and no claim is pending or, to the Knowledge of any of the Company, threatened with respect to such matters.

 

2.7    No Sales or Liquidation Contemplated. The Company is not in discussions or negotiations with any third party regarding the sale of the business of the Company, whether structured as a merger, reverse merger, share exchange, sale of a controlling interest of its stock, the sale of all or substantially all of the assets of the business of the Company, or otherwise contemplating a liquidation of the Company.

 

2.8     No Broker or Finder. Neither the Company or any of its officers, directors, have retained or used the services of any broker, finder, investment banker, or other financial intermediary, nor has the Company paid or agreed to pay any brokerage, finder’s, or other fee or commission in connection with any of the transactions contemplated by this Agreement.

 

2.9     Accuracy of Representations and Warranties. The Company confirms that the representations and warranties of the Company made to the Investor pursuant to this Agreement were true and correct as of the date that each Loan was funded by the Investor (“Loan Date”) and are true and correct as of the date of this Agreement.

 

3.      Representations, Warranties, and Covenants of the Investor. The Investor hereby represents and warrants to the Company as follows:

 

3.1     Authority; No Conflict or Required Consents.

 

(a) The Investor is an individual who has full legal capacity to execute and deliver this Agreement, to perform his obligations hereunder and thereunder, and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Investor and, assuming valid authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of the Investor enforceable against him in accordance with its terms (subject to the Bankruptcy and Equity Exceptions).

 

(b) Neither the execution, delivery or performance of this Agreement by the Investor, nor the consummation by the Investor of the transactions hereby, or compliance by the Investor with any of the terms or provisions herein will conflict with or violate any order, writ, Injunction, decree, or Law applicable to the Investor, or any of his properties or assets that will materially impair the ability of the Investor to perform his obligations under this Agreement.

 

(c) Neither the execution or delivery of this Agreement by such Investor, nor the consummation of the transactions contemplated hereby, will require notice to, registration, declaration, or filing by the Investor with, or Permit or Consent of, or any action by any Governmental Entity.

 

3.2     Investment Representations.

 

(a) The Investor affirms that he has been advised and understands that (i) the Securities have not been registered under the Securities Act or registered or qualified under the securities Laws of any other jurisdiction and are being sold in reliance upon an exemption from registration under such Laws, (ii) he may not transfer the Securities unless they are subsequently registered and qualified under such Laws or, in the opinion of counsel reasonably satisfactory to the Company, an exemption from such registration and qualification is available, and (iii) any Transfer that is permitted must satisfy certain legal, procedural and other requirements.

 

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(b) The Investor: (i) is the sole and true party in interest, and is acquiring the Securities solely for his own account, not as a nominee or agent, for investment purposes only, and not with an intent or a view to the sale or distribution of any part thereof within the meaning of Section 2(a)(11) of the Securities Act, (ii) does not have any present intent of making a Transfer of, granting a participation in, or otherwise distributing the Securities in a manner contrary to the Securities Act or the securities Laws of any other applicable jurisdiction, nor does the Investor have any contract, undertaking, agreement, or arrangement with any person to Transfer, grant any participation in, or otherwise distribute any of the Securities to such person, and (iii) does not presently have any reason to anticipate any change in circumstances or other particular occasion or event which would cause the Investor to need to sell the Securities, except in accordance with the terms of this Agreement and in compliance with all applicable federal and state securities Laws.

 

(c) The Investor understands and acknowledges that only the Company can register the Securities under applicable securities Laws; the Company does not have any present intention to register the Securities under the Securities Act or the securities Laws of any other jurisdiction; there is a limited public market for the Common Stock; and, as a result an investment in the Securities may not be liquid and that the Investor must bear the economic risk of the investment indefinitely. In this regard, the Investor further represents that it has adequate means of providing for his current needs and possible personal contingencies, it can afford to bear the economic risk of holding the Conversion Shares for an indefinite period of time, it has no need for liquidity in its investment in the Conversion Shares, and it has the net worth sufficient to bear the risks of and to sustain a complete loss of such Investor’s entire investment in the Company.

 

(d) The Investor confirms that it is aware and understands that no federal or state agency has made any finding or determination as to the fairness of this offering nor has made any recommendation or endorsement of the Securities.

 

(e) Such Investor recognizes that an investment in the Securities and the Company involves certain risks, and such Investor has taken full cognizance of, understands, and is willing to bear the risks related to the purchase of the Securities.

 

3.3     Knowledge and Experience. The Investor has sufficient knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment contemplated by this Agreement and the Investor is able to bear the economic risk of its investment in the Securities and the Company.

 

3.4     Accredited Investor; Not a Bad Actor. The Investor is (a) an “accredited investor” as such term is defined in Rule 501(a) promulgated under the Securities Act and (b) is not subject to any “bad actor” disqualification set forth in Rule 506(d) of Regulation D or any similar disqualification provision that could adversely affect the Company’s reliance on any federal or state securities registration exemption or that could otherwise adversely affect the offering of the Securities.

 

3.5      Information Provided. The Investor represents, acknowledges and confirms that:

 

(a) prior to the sale of the Securities to him pursuant to this Agreement, the Investor: (i) has been given access to all material books and records of the Company and all material contracts and documents relating to the sale of the Securities pursuant to this Agreement, (ii) has been given an the opportunity to ask questions of, and receive answers from, representatives of the Company concerning Company and the terms and conditions of the sale of the Securities by the Company to the Investor, and (iii) confirms that he has been furnished with all such requested information and all questions asked by such Investor have been answered to his full satisfaction.

 

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(b) the Investor is acquiring the Securities without being furnished any offering literature or prospectus other than any documents or answers to questions so furnished to him by the Company.

 

(c) in addition to the representations set forth in Section 3.5(a) hereof, the Investor, because of his relationship with the Company as a director thereof, is in possession of or has complete and unrestricted access to, all material information concerning the Company, its business, operations, and financial condition and, as a result thereof, is thoroughly familiar with the speculative nature and risks of an investment in the Securities and is willing to bear the risks related to the purchase of the Securities. The Investor has been given access to all material information concerning the Company which is available or known to the Company.

 

(d) the Investor has not relied on any statement or representation of the Company or of any of its Affiliates, attorneys, agents, or other representatives, except as specifically set forth or referenced in this Agreement or provided in accordance with Section 3.5(a) of this Agreement.

 

(e) the Investor acknowledges and understands that the representations, warranties, and covenants contained in this Section 3 of the Agreement are being furnished, in part, and will be relied on by the Company in determining whether this offering of the Securities (and particularly, the Conversion Shares) is exempt from registration under the Securities Act and the securities laws of all other applicable jurisdictions and, accordingly, confirms that all such statements contained herein are true, complete, and accurate as of the date hereof, and shall be true, accurate, and complete as of the date that this Agreement is executed and delivered, and shall survive the execution and delivery of this Agreement. If any events occur or circumstances exist prior to the issuance of the Conversion Shares to the Investor which would make any of the representations, warranties, agreements, or other information of the Investor set forth herein untrue or inaccurate, the Investor agrees to immediately notify the Company in writing of such fact specifying which representations, warranties, or covenants are not true, correct, or accurate, and the reasons therefor.

 

3.6     No Broker or Finder. Such Investor has not retained or used the services of any broker, finder, investment banker, or other intermediary, nor has any Investor paid or agreed to pay any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement.

 

3.7     Accuracy of Representations and Warranties. The Investor confirms that the representations and warranties of the Investor made to the Company pursuant to this Agreement were true and correct as of the Loan Date and are true and correct as of the date of this Agreement.

 

4.       Additional Agreements.

 

4.1     Agreement Not to Transfer Securities.The Investor hereby agrees that he will not, directly or indirectly Transfer, or offer to Transfer any of the Securities (or solicit any offers to buy, purchase, or otherwise acquire or take a pledge of any the Securities), except in compliance with this Agreement, the Securities Act and the securities Laws of all other applicable jurisdictions, as well as the rules and regulations promulgated thereunder.

 

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4.2.    Investor’s Indemnification Agreement. The Investor acknowledges that understands the meaning and legal consequences of the representations, warranties and covenants contained in Section 3 of this Agreement, especially as it relates to the reliance referenced in Section 3.5(e) hereof, and agrees to indemnify and hold harmless the Company and its agents, employees, and representatives from and against any and all losses (including reasonable attorney’s fees), damage or liabilities due to or arising out of any misrepresentations, misstatements, or omissions with respect to any of the representations or warranties, or a breach of any of the covenants or agreements, contained in this Agreement by the Investor.

 

4.3     Reservation of Convertible Shares. The Company hereby agrees that:

 

(a) it will at all times have authorized and will reserve and keep available, solely for issuance and delivery to the Holder, that number of shares of its Common Stock (or other securities and property) that may be required from time to time for issuance and delivery of the Conversion Shares to the Investor upon conversion of the Convertible Notes.

 

(b) it shall take all necessary steps to ensure that the Conversion Shares, when issued in accordance with this Agreement and each of the Convertible Notes, shall be duly and validly issued, shall be fully paid and nonassessable, free and clear of any claim, lien, encumbrance, or security interest of any kind whatsoever, and free from all preemptive rights of any security holders of the Company.

 

(c) it shall take all action as may be necessary to assure that such Conversion Shares (and any other securities and property) may be issued and delivered as provided herein and as set forth in the associated Convertible Note without violation of any applicable law or regulation, or of any requirements, of any domestic securities exchange or inter dealer quotation system upon which the Common Stock may be listed; provided, however, that the Company shall not be required to effect a registration under federal or state securities laws.

 

4.4    Convertible Notes. The Investor agrees that by acceptance of the Convertible Notes pursuant to the terms of this Agreement, he will be bound by the terms of Convertible Notes.

 

4.5     Amendment of Prior Note Agreements. The Company and the Investor hereby agree that the October 2014 Note Agreement and the February 2015 Note Agreement are amended by deleting Section 4.3 of each such agreement and, in lieu thereof, replacing it with the following provision:

 

“4.3 Reservation of Convertible Shares. The Company hereby agrees that:

 

(a) it will at all times have authorized and will reserve and keep available, solely for issuance and delivery to the Holder, that number of shares of its Common Stock (or other securities and property) that may be required from time to time for issuance and delivery of the Conversion Shares to the Investor upon conversion of the Convertible Notes.

 

(b) it shall take all necessary steps to ensure that the Conversion Shares, when issued in accordance with this Agreement and each of the Convertible Notes, shall be duly and validly issued, shall be fully paid and nonassessable, free and clear of any claim, lien, encumbrance, or security interest of any kind whatsoever, and free from all preemptive rights of any security holders of the Company.

 

7

 

(c) it shall take all action as may be necessary to assure that such Conversion Shares (and any other securities and property) may be issued and delivered as provided herein and as set forth in the associated Convertible Note without violation of any applicable law or regulation, or of any requirements, of any domestic securities exchange or inter dealer quotation system upon which the Common Stock may be listed; provided, however, that the Company shall not be required to effect a registration under federal or state securities laws.”

 

4.6   Documentary Stamp Taxes. The Company agrees to pay all documentary stamp taxes required to be paid in connection with the issuance and delivery of the Convertible Notes to the Investor.

 

4.7   Further Assurances. On or after the date of this Agreement, each of the parties shall execute and deliver, or cause to be executed and delivered, such further documents, certificates, and instruments reasonably required to issue and distribute the Securities to the Investor, and to perform such further acts as may be reasonably requested in order to convey the Securities to the Investor, all on terms contained herein, and otherwise to comply with the terms of this Agreement and consummate the transactions herein provided.

 

5.      General Provisions.

 

Section 5.1 Definitions.

 

(a) Except as otherwise provided herein, the capitalized terms set forth below shall have the following meanings:

 

“Affiliate” shall mean, as to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person. For purposes of this definition, (i) the term “control” (including the term “controlling,” “controlled by” and “under common control,” or correlative terms) means the possession, direct or indirect, of the power to direct the management and policies of a Person, whether as an officer or director, through the ownership of voting securities, by contract or otherwise.

 

“Business Day” shall mean any day other than a Saturday, Sunday, or other day on which commercial banks in the State of Florida are authorized or required by Law or executive order to close.

 

“Common Stock” shall mean the shares of common stock, par value $0.0001 per share, of the Company.

 

“Consent” shall mean any consent, order, approval, authorization, clearance, exemption, waiver, ratification, or similar affirmation by any Person.

 

“Entity” shall mean any general partnership, limited partnership, corporation, joint venture, trust, limited liability company, limited liability partnership, unincorporated organization, business trust, cooperative or association.

 

“February 2015 Convertible Note” shall mean the convertible promissory note of the Company issued pursuant to the February 2015 Note Agreement.

 

“February 2015 Note Agreement”shall mean the Convertible Promissory Note Agreement, effective as of February 10, 2015, by and between the Company and the Investor.

 

8

 

“Law” means any code, law, ordinance, regulation, reporting or licensing requirement, rule, or statute applicable to a Person or its assets, properties, liabilities, or business, including those promulgated, interpreted, or enforced by any Governmental Entity.

 

“Liens” shall mean all liens, encumbrances, charges, pledges, claims, security interests, equities, options, warrants, rights to purchase or acquire, and other defects in title.

 

“Outstanding Notes” shall mean the October 2014 Convertible Notes and the February 2015, Convertible Note.

 

“October 2014 Convertible Note” shall mean the amended promissory Notes of the Company issued pursuant to the October 2014 Note Agreement.

 

“October 2014 Note Agreement” shall mean the Convertible Promissory Note agreement, effective as of October 24, 2014, as amended pursuant to the First Amendment to Convertible Promissory Note Purchase Agreement, effective January 12, 2015, by and between the Company and the Investor.

 

“Permits” shall mean all permits, licenses, variances, certificates, filings, franchises, notices, rights, and Consents of and from all Governmental Entities.

 

“Person” shall mean an individual or an Entity.

 

“Transfer” shall be construed broadly and shall include to mean, in the context of a transfer of any of the Securities, any sale, assignment, participation, gift, bequest, distribution, exchange, pledge, hypothecation, placement of a lien thereon or a grant of a security interest therein or other encumbrances thereon, judicial attachment, contribution to a trust or other Entity, or other transfer or disposition (voluntarily or involuntarily, by operation of law or otherwise, and whether as security or otherwise) by a Holder of all or a portion of its Securities or any right or interest therein. For purposes of this definition, a “Transfer” shall include the sale, assignment, participation, gift, bequest, distribution, exchange, pledge, hypothecation, placement of a lien thereon or a grant of a security interest therein or other encumbrances thereon, judicial attachment, contribution to a trust or other Entity, or other transfer or disposition (voluntarily or involuntarily, by operation of law or otherwise, and whether as security or otherwise) of a controlling equity interest in any Person which owns of record any of the Securities.

 

(b) The following terms shall have the meanings ascribed thereto in the Section set forth opposite such term:

 

Term	Section
Agreement	Preamble
Bankruptcy and Equity Exceptions	2.2(a)
Board of Directors (or Board)	2.2(b)
Company	Preamble
Conversion Shares	2.2(a)
Convertible Note(s)	1.1
Governmental Entity	2.3(a)
Investor	Preamble
Loan(s)	1.1
Loan Date	2.9
Loan Documents	2.2(a)

  

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(c) Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed followed by the words “without limitation.”

 

5.2    Expenses. Except as otherwise provided in this Agreement, whether or not the transactions contemplated herein are consummated, each party hereto shall bear and pay its own fees, costs and expenses incident to preparing, entering into and carrying out this Agreement and to consummating the transactions contemplated hereby.

 

5.3    Entire Agreement. Except as otherwise expressly provided herein, this Agreement and the other documents, agreements, and instruments, executed and delivered pursuant to or in connection with this Agreement, including the Convertible Notes, contains the entire agreement among the parties hereto with respect the subject matter hereof, and such Agreement supersedes all prior arrangements or understandings with respect to the subject matter hereof, both written and oral.

 

5.4    Amendment and Modification. Except as otherwise expressly set forth in this Agreement, any term of this Agreement may be amended or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Investor. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.

 

5.5     Survival of Representations. The representations and warranties in this Agreement and in any certificate delivered pursuant hereto shall survive the Closing.

 

5.6     No Assignment. None of the parties hereto may assign any of its rights or delegate any of its obligations under this Agreement to any other Person, and any such purported assignment or delegation that is made without the prior written consent of the other parties to this Agreement shall be void and of no effect.

 

5.7     Notices. All notices or other communications given or made pursuant to this Agreement shall be in writing and shall be (a) delivered by registered or certified mail, return receipt requested, postage prepaid, (b) by expedited mail or package delivery service guaranteeing next Business Day delivery, (or, for international deliveries, the earliest Business Day that such delivery service can guarantee delivery if so requested and paid for), or (c) delivered personally, by hand, to the persons at the addresses set forth below (or at such other address as may be provided hereunder):

 

If to Company:

 

Ted Sparling, President & CEO

Kingfish Holding Corporation

2641 49th Street

Sarasota, FL 34234

 

with a copy to:

 

Carlton Fields Jorden Burt, P.A.

Corporate Center Three at International Plaza

4221 West Boy Scout Blvd., Ste. 1000

Tampa, FL 33607-5780

Attn: Richard A. Denmon

Telephone: 813-229-4219

Facsimile: 813-229-4133

 

If to an Investor: At the address shown in the stockholder records of the Company.

 

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Any notice or other communications to be given or that may be given pursuant to this Agreement shall be deemed to have been given: (x) three calendar days after the deposit of such notice or communication in the United States Mail, registered or certified, return receipt requested, with proper postage affixed thereto; (y) on the first Business Day after depositing such notice of communication with Federal Express, Express Mail, or other expedited mail or package delivery service guaranteeing delivery no later than the next Business Day if next Business Day delivery service has been requested and paid for (or on such Business Day as such delivery service has been requested, guaranteed, and paid for); or (z) upon delivery if hand delivered or telecopied to the appropriate address and person as provided hereinabove or to the person to whose attention the notice is to be given to the other parties in the manner hereinabove provided.

 

5.8    Governing Law; Jurisdiction.

 

(a) This Agreement shall in all respects be governed by and construed in accordance with the Laws of the State of Florida, without giving effect to the principles of conflict of Laws thereof.

 

(b) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereunder shall be brought solely in the courts of the State of Florida located in Hillsborough County, Florida, or, if it has or can acquire jurisdiction, in the United States District Court for the Middle District of Florida (Orlando or Tampa Division), and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and waives any objection to the venue or the convenience of forum of any such courts. 

 

5.9    Specific Performance. Each party hereto agrees that irreparable damage would occur in the event that any of the provisions of this Agreement was not performed in accordance with its specific terms or was otherwise breached, and it is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States of any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.

 

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5.10   Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.10.

 

5.11   Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provisions shall be interpreted to be only so broad as is enforceable.

 

5.12    Attorney Fees. A party in breach of this Agreement shall, on demand, indemnify and hold harmless the other party or parties for and against all reasonable out-of-pocket expenses, including legal fees, incurred by such other party or parties by reason of enforcement and protection of its or their rights under this Agreement. The payment of such expenses is in addition to any other relief to which such other party may be entitled.

 

5.13    Counterparts. This Agreement may be executed in one or more separate counterparts, each of which, when so executed and delivered, shall be deemed to constitute an original, but all of which together shall constitute one and the same instrument.

 

5.14    Captions. The captions contained in this Agreement are for reference purposes only and are not part of this Agreement.

 

[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf all as of the date first written above.

 

 

	COMPANY:
	Kingfish Holding Corporation, a Delaware corporation
Date	By:	/s/ Ted Sparling
		Ted Sparling, President & CEO

 

INVESTOR:

 

/s/ James K. Toomey                      

James K. Toomey

 

[SIGNATURE PAGE TO CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT (MAY 13, 2015)]

 

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EXHIBIT A

 

Loan Advances

 

Date of Loan Advance		Principal Amount of Loan Advance
March 5, 2015		$	20,000
March 16, 2015		$	40,000
Aggregate Loan Amount		$	60,000

 

A-1

 

EXHIBIT B

 

 

 

 

 

 

 

Exhibit B-1

 

THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE, TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING ACQUIRED ANY SUCH UNITS BY THE ISSUER FOR ANY PURPOSES, EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE SECURITIES LAWS OF ALL OTHER APPLICABLE JURISDICTIONS OR (2) THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION SHALL BE ESTABLISHED TO THE REASONABLE SATISFACTION OF THE ISSUER.

 

CONVERTIBLE PROMISSORY NOTE

 

Note No. 11	May 13, 2015
U.S. $20,000.00	Tampa, Florida

 

 

FOR VALUE RECEIVED, the undersigned Kingfish Holding Corporation, a Delaware corporation (the “Company”), promises to pay to the order of James K. Toomey (“Payee”, and Payee and any subsequent permitted holder(s) of this Note being referred to collectively as “Holder”), at Holder’s address set forth below (or by wire transfer to Holder’s wire address set forth below) or at such other place as Holder may designate in writing pursuant to the notice provisions below, the principal sum of TWENTY THOUSAND DOLLARS ($20,000.00) (the “Principal Amount”), together with accrued and unpaid interest thereon, said principal and interest to be due and payable as stated below.

 

This convertible promissory note (the “Note”) is issued pursuant to the terms of that certain Convertible Promissory Note Purchase Agreement (as amended, the “Purchase Agreement”) dated as of May 13, 2015 by and between the Company and the Payee. Capitalized terms used herein without definition shall have the meanings given to such terms in the Purchase Agreement.

 

1.      Interest Rate. The Company promises to pay simple interest on the outstanding principal amount of this Note from March 5, 2015 (the date that the underlying loan was originally made by the Holder to the Company) until paid in full at the fixed rate of three and one-half percent (3.5%) per annum. Interest shall be calculated on a 365-day year basis and shall be due and payable as set forth below.

 

2.      Maturity. Unless this Note has been previously converted in accordance with the terms of Section 5 hereof, all outstanding principal and accrued and unpaid interest on this Note, plus all fees, costs and expenses then due under this Note, become fully due and payable upon demand by the Holder (the “Maturity Date”); provided, however, that no demand for payment shall be made prior to June 1, 2015.

 

B1-1

 

3.     Payments. No principal amount of this Note or any accrued interest on the principal balance of this Note is due or payable until the Maturity Date.

 

4.     Prepayment. The Company may not prepay this Note prior to the Maturity Date without the consent of the Holder. Following the Maturity Date, the Company may prepay any part or all of any amount payable under this Note, including principal or interest or both, at any time or times without any premium or penalty whatsoever. Any and all prepayments shall be applied first to reimbursement of Holder for any costs or expenses incurred by Holder to enforce or collect amounts owed hereunder, then to repayment of any accrued and unpaid interest hereunder, and then to principal outstanding hereunder.

 

5.      Optional Conversion of Note.

 

(a)    Optional Conversion Rights. The outstanding principal balance of this Note shall be convertible, in whole or in part, at the option of the Holder at any time prior to the Maturity Date, into shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”), at the then-Conversion Price (as defined in Section 5(d) below) (the “Optional Conversion Right”), commencing upon the earliest of any of the following:

 

(i) the date that the Company takes all corporate action necessary to increase the number of authorized shares of Common Stock in an amount sufficient to issue those shares of Common Stock issuable upon the exercise of the Optional Conversion Right, in whole or in part, by the Holder (the “Authorization Actions”),

 

(ii) Sale of the Company (as defined in Section 5(d) below), or

 

(iii) immediately prior to the closing of any equity financing or issuance of debt securities by the Company in a transaction or a series of related transactions resulting in aggregate proceeds of at least One Hundred Thousand Dollars ($100,000).

 

The date that the Optional Conversion Right first becomes available to the Holder is referred to herein as “Determination Date.” To the extent that the Holder decides to exercise his or her Optional Conversion Right, then any unpaid interest on this Note shall be converted into Common Stock on the same terms as the principal of the Note.

 

(b)    Covenants of Company. The Company shall take all action as may be necessary to assure that such shares of Common Stock (and any other securities and property) may be issued and delivered as provided herein without violation of any applicable law or regulation, or of any requirements, of any domestic securities exchange or inter-dealer quotation system upon which the Common Stock may be listed.

 

(c)     Exercise of Optional Conversion Right. The Optional Conversion Right may be exercised by the Holder, in whole but not in part, at any time, and from time to time after the Determination Date and prior to the Maturity Date, by the surrender and presentment of this Note accompanied by a duly executed Notice of Exercise in the form attached hereto (the “Exercise Notice”), presented to the Company, at its principal office or at such other place as the Company may designate by notice in writing to the Holder.

 

B1-2

 

(d)     Definitions. For purposes of this Note:

 

(i) The term “Conversion Price” shall be $0.01 per share of Common Stock, subject to adjustment as provided in Section 5(e) hereof.

 

(ii) The term “Conversion Shares” shall be those shares of Common Stock issued upon Conversion of this Note.

 

(iii) The term “Sale of the Company” shall mean (A) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the shareholders of the Company immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (B) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred; provided, however, that a Sale of the Company shall not include any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the Company is cancelled or converted or a combination thereof; or (C) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company.

 

(e)     Anti-Dilution Provisions. The number and kind of securities and other property that may be acquired upon the conversion of this Note and the Conversion Price shall be subject to adjustment, from time to time, upon the happening of any of the following events:

 

(i) In the event that the Company shall declare, pay, or make any dividend upon its outstanding shares of Common Stock payable in Common Stock or shall effect a subdivision of the outstanding Common Stock into a greater number of shares of Common Stock, then the number of Conversion Shares that may thereafter be purchased upon the exercise of the rights represented hereby shall be increased in proportion to the increase in the number of outstanding shares of Common Stock through such dividend or subdivision, and the Conversion Price shall be decreased in such proportion. In case the Company shall at any time combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the number of Conversion Shares that may thereafter be acquired upon the exercise of the rights represented hereby shall be decreased in proportion to the decrease through such combination and the Conversion Price shall be increased in such proportion.

 

(ii) In the event that the Company declares, pays, or makes any dividend or other distribution upon its outstanding shares of Common Stock payable in securities or other property (excluding cash dividends and dividends payable in shares of Common Stock, but including, without limitation, shares of any other class of the Company’s stock or stock or other securities convertible into or exchangeable for shares of Common Stock or any other class of the Company’s stock or other interests in the Company or its assets), a proportionate part of those securities or that other property shall be set aside by the Company and delivered to the Holder in the event that the Holder exercises his Optional Conversion Right with respect to this Note. The securities and other property then deliverable to the Holder upon the conversion of this Note shall be in the same ratio to the total securities and property set aside for the Holder as the number of Conversion Shares with respect to which this Note is then converted is to the total number of Conversion Shares that may be acquired pursuant to this Note at the time the securities or property were set aside for the Holder.

 

B1-3

 

(f)     Conversion Price Adjustments. Except as otherwise provided in this Section 5, upon any adjustment of the Conversion Price, the Holder shall be entitled to purchase, based upon the new Conversion Price, the number of shares of Common Stock, calculated to the nearest full share, obtained by: (i) multiplying the (A) number of Conversion Shares that may be acquired pursuant to this Note immediately prior to the adjustment of the Conversion Price by (B) the Conversion Price in effect immediately prior to its adjustment, and (ii) dividing the product so obtained in clause (i) by the new Conversion Price.

 

(g)     Prior Notice of a Sale of the Company. Notwithstanding any provision of this Note to the contrary, in the event that the Company consummates a Sale of the Company prior to the conversion or repayment in full of this Note, the Company will give the Holder at least five days prior written notice of the anticipated closing date of such Sale of the Company.

 

6.      Expenses. In the event of any failure of the Company to pay all amounts due upon a demand made pursuant to Section 2 of this Note, the Company shall pay all reasonable attorneys’ fees and court costs incurred by Holder in enforcing and collecting this Note.

 

7.      Waiver. The Company hereby waives demand, notice, presentment, protest and notice of dishonor.

 

8.      Notices. Any notice or other communications to be given or that may be given pursuant to this Note shall be deemed to have been given: (x) three (3) calendar days after the deposit of such notice or communication in the United States Mail, registered or certified, return receipt requested, with proper postage affixed thereto; (y) on the first Business Day after depositing such notice of communication with Federal Express, Express Mail, or other expedited mail or package delivery service guaranteeing delivery no later than the next Business Day if next Business Day delivery service has been requested and paid for (or on such subsequent Business Day as such delivery service has been requested, guaranteed and paid for); or (z) upon delivery if hand delivered or telecopied to the appropriate address and person as provided hereinabove or to the person to whose attention the notice is to be given to the other parties in the manner hereinabove provided; provided, however, that any notice changing Holder’s address or wire address shall be effective only upon receipt by the Company.

 

9.      Governing Law.

 

(a) This Note shall in all respects be governed by and construed in accordance with the laws of the State of Florida, without giving effect to the principles of conflict of laws thereof.

 

(b) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereunder shall be brought solely in the courts of the State of Florida located in Hillsborough County, Florida, or, if it has or can acquire jurisdiction, in the United States District Court for the Middle District of Florida (Orlando or Tampa Division), and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and waives any objection to the venue or the convenience of forum of any such courts. 

 

B1-4

 

10.     Modification; Waiver. No term of this Note may be amended or waived without the prior written consent of the Company and the Holder.

 

11.     Assignment. Neither the Company nor the Holder may assign or transfer this Note without the prior written consent of the other party (not to be unreasonably withheld) provided that, in no event shall this Note or any interest herein be transferable, in whole or in part, to any person or entity under circumstances that would be reasonably likely to violate or trigger a consent or other approval requirement under applicable laws, including but not limited to U.S. securities laws, the Foreign Corrupt Practices Act, FINSA, laws restricting money transfers and payments to persons or entities located in certain restricted countries, foreign nationals identified on any restricted list, and associated regulations as in existence at the time, and the laws and regulations of any other country. Any such written notice shall set forth in reasonable detail the identity of the new Holder(s) and the terms of transfer of this Note (including a release by the applicable Holder of any right to receive any payments hereunder) and the Company shall be obligated to register the transfer of this Note and make payments to any Holder hereunder only if the Company determines such transfer or payment is not restricted or prohibited by any such laws (and the due date of any such payment shall be extended by the length of time that any such legal restriction or prohibition exists). This Note shall inure to the benefit of Holder, its successors and assigns, and to any person to whom Holder may grant an interest in any of the indebtedness evidenced hereby in compliance with the foregoing restrictions, and shall be binding upon the Company and its successors and assigns. No person or entity not a direct party hereto shall be entitled to enforce any rights or obligations hereunder as a third party beneficiary or otherwise.

 

12.     Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.

 

B1-5

 

13.      Time of Essence. Time is of the essence of the payment and performance of this Note.

 

14.     Miscellaneous. The Company and Holder have participated jointly in the negotiation and drafting of this Note. In the event an ambiguity or question of intent or interpretation arises, this Note shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Note. No delay by Holder in enforcing its rights hereunder or otherwise, shall prejudice Holder’s rights to enforce this Note. Neither Party to this Note will be liable to the other for any failure or delay in performance under this Note due to circumstances beyond its reasonable control including, without limitation, Acts of God, labor disruption, war, terrorist threat or government action, or lack of availability of wire transfer systems or other international or national systems; provided, that if either party is unable to perform its obligations under this Note for one of these reasons it shall give prompt written notice thereof to the other party and the time for performance, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.

 

15.     Agreement by Holder. By its acceptance of this Note, Holder agrees to be bound by the terms hereof.

 

16.     Documentary Stamp Taxes. All required Florida documentary stamp taxes due in connection with this Note have been paid.

 

[Signature Page Follows]

 

B1-6

 

	Kingfish Holding Corporation, a Delaware corporation
	By:
	Name:
	Title:

 

HOLDER:

 

___________________________

James K. Toomey

 

 

[SIGNATURE PAGE TO CONVERTIBLE PROMISSORY NOTE NO. 11 OF KINGFISH HOLDING CORPORATION]

 

B1-7

 

 

NOTICE OF EXERCISE

 

(To be executed by the Holder desiring to exercise the right to convert this Note into Units of KINGFISH HOLDING CORPORATION, a Delaware corporation)

 

The undersigned Holder of a Convertible Promissory Note (Note No. 11) hereby elects to exercise his or her Optional Conversion Right, pursuant to the provisions of the Note dated May 13, 2015 issued to the Holder by Kingfish Holding Corporation, a Delaware corporation, to receive that number of shares of Common Stock into which the outstanding principal amount of, and accrued and unpaid interest on, this Note is convertible at the Conversion Price at the address set forth below.

 

Dated:                       , _______

 

	Printed Name:
	Signature:
	Address:

 

(Signature must conform in all respects to the name of holder as specified on the face of this Note.)

 

B1-8

 

Exhibit B-2

 

THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE, TRANSFEREE, OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING ACQUIRED ANY SUCH UNITS BY THE ISSUER FOR ANY PURPOSES, EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE SECURITIES LAWS OF ALL OTHER APPLICABLE JURISDICTIONS OR (2) THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION SHALL BE ESTABLISHED TO THE REASONABLE SATISFACTION OF THE ISSUER.

 

CONVERTIBLE PROMISSORY NOTE

 

Note No. 12	May 13, 2015
U.S. $40,000.00	Tampa, Florida

 

 

FOR VALUE RECEIVED, the undersigned Kingfish Holding Corporation, a Delaware corporation (the “Company”), promises to pay to the order of James K. Toomey (“Payee”, and Payee and any subsequent permitted holder(s) of this Note being referred to collectively as “Holder”), at Holder’s address set forth below (or by wire transfer to Holder’s wire address set forth below) or at such other place as Holder may designate in writing pursuant to the notice provisions below, the principal sum of FORTY THOUSAND DOLLARS ($40,000.00) (the “Principal Amount”), together with accrued and unpaid interest thereon, said principal and interest to be due and payable as stated below.

 

This convertible promissory note (the “Note”) is issued pursuant to the terms of that certain Convertible Promissory Note Purchase Agreement (as amended, the “Purchase Agreement”) dated as of May 13, 2015 by and between the Company and the Payee. Capitalized terms used herein without definition shall have the meanings given to such terms in the Purchase Agreement.

 

1.     Interest Rate. The Company promises to pay simple interest on the outstanding principal amount of this Note from March 16, 2015 (the date that the underlying loan was originally made by the Holder to the Company) until paid in full at the fixed rate of three and one-half percent (3.5%) per annum. Interest shall be calculated on a 365-day year basis and shall be due and payable as set forth below.

 

2.     Maturity. Unless this Note has been previously converted in accordance with the terms of Section 5 hereof, all outstanding principal and accrued and unpaid interest on this Note, plus all fees, costs and expenses then due under this Note, become fully due and payable upon demand by the Holder (the “Maturity Date”); provided, however, that no demand for payment shall be made prior to June 1, 2015.

 

B2-1

 

3.     Payments. No principal amount of this Note or any accrued interest on the principal balance of this Note is due or payable until the Maturity Date.

 

4.     Prepayment. The Company may not prepay this Note prior to the Maturity Date without the consent of the Holder. Following the Maturity Date, the Company may prepay any part or all of any amount payable under this Note, including principal or interest or both, at any time or times without any premium or penalty whatsoever. Any and all prepayments shall be applied first to reimbursement of Holder for any costs or expenses incurred by Holder to enforce or collect amounts owed hereunder, then to repayment of any accrued and unpaid interest hereunder, and then to principal outstanding hereunder.

 

5.      Optional Conversion of Note.

 

(a)    Optional Conversion Rights. The outstanding principal balance of this Note shall be convertible, in whole or in part, at the option of the Holder at any time prior to the Maturity Date, into shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”), at the then-Conversion Price (as defined in Section 5(d) below) (the “Optional Conversion Right”), commencing upon the earliest of any of the following:

 

(i) the date that the Company takes all corporate action necessary to increase the number of authorized shares of Common Stock in an amount sufficient to issue those shares of Common Stock issuable upon the exercise of the Optional Conversion Right, in whole or in part, by the Holder (the “Authorization Actions”),

 

(ii) Sale of the Company (as defined in Section 5(d) below), or

 

(iii) immediately prior to the closing of any equity financing or issuance of debt securities by the Company in a transaction or a series of related transactions resulting in aggregate proceeds of at least One Hundred Thousand Dollars ($100,000).

 

The date that the Optional Conversion Right first becomes available to the Holder is referred to herein as “Determination Date.” To the extent that the Holder decides to exercise his or her Optional Conversion Right, then any unpaid interest on this Note shall be converted into Common Stock on the same terms as the principal of the Note.

 

(b)    Covenants of Company. The Company shall take all action as may be necessary to assure that such shares of Common Stock (and any other securities and property) may be issued and delivered as provided herein without violation of any applicable law or regulation, or of any requirements, of any domestic securities exchange or inter-dealer quotation system upon which the Common Stock may be listed.

 

(c)     Exercise of Optional Conversion Right. The Optional Conversion Right may be exercised by the Holder, in whole but not in part, at any time, and from time to time after the Determination Date and prior to the Maturity Date, by the surrender and presentment of this Note accompanied by a duly executed Notice of Exercise in the form attached hereto (the “Exercise Notice”), presented to the Company, at its principal office or at such other place as the Company may designate by notice in writing to the Holder.

 

B2-2

 

(d)     Definitions. For purposes of this Note:

 

(i) The term “Conversion Price” shall be $0.01 per share of Common Stock, subject to adjustment as provided in Section 5(e) hereof.

 

(ii) The term “Conversion Shares” shall be those shares of Common Stock issued upon Conversion of this Note.

 

(iii) The term “Sale of the Company” shall mean (A) any consolidation or merger of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, other than any such consolidation, merger or reorganization in which the shareholders of the Company immediately prior to such consolidation, merger or reorganization, continue to hold at least a majority of the voting power of the surviving entity in substantially the same proportions (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or reorganization; (B) any transaction or series of related transactions to which the Company is a party in which in excess of 50% of the Company’s voting power is transferred; provided, however, that a Sale of the Company shall not include any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the Company is cancelled or converted or a combination thereof; or (C) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company.

 

(e)     Anti-Dilution Provisions. The number and kind of securities and other property that may be acquired upon the conversion of this Note and the Conversion Price shall be subject to adjustment, from time to time, upon the happening of any of the following events:

 

(i) In the event that the Company shall declare, pay, or make any dividend upon its outstanding shares of Common Stock payable in Common Stock or shall effect a subdivision of the outstanding Common Stock into a greater number of shares of Common Stock, then the number of Conversion Shares that may thereafter be purchased upon the exercise of the rights represented hereby shall be increased in proportion to the increase in the number of outstanding shares of Common Stock through such dividend or subdivision, and the Conversion Price shall be decreased in such proportion. In case the Company shall at any time combine the outstanding shares of Common Stock into a smaller number of shares of Common Stock, the number of Conversion Shares that may thereafter be acquired upon the exercise of the rights represented hereby shall be decreased in proportion to the decrease through such combination and the Conversion Price shall be increased in such proportion.

 

(ii) In the event that the Company declares, pays, or makes any dividend or other distribution upon its outstanding shares of Common Stock payable in securities or other property (excluding cash dividends and dividends payable in shares of Common Stock, but including, without limitation, shares of any other class of the Company’s stock or stock or other securities convertible into or exchangeable for shares of Common Stock or any other class of the Company’s stock or other interests in the Company or its assets), a proportionate part of those securities or that other property shall be set aside by the Company and delivered to the Holder in the event that the Holder exercises his Optional Conversion Right with respect to this Note. The securities and other property then deliverable to the Holder upon the conversion of this Note shall be in the same ratio to the total securities and property set aside for the Holder as the number of Conversion Shares with respect to which this Note is then converted is to the total number of Conversion Shares that may be acquired pursuant to this Note at the time the securities or property were set aside for the Holder.

 

B2-3

 

(f)     Conversion Price Adjustments. Except as otherwise provided in this Section 5, upon any adjustment of the Conversion Price, the Holder shall be entitled to purchase, based upon the new Conversion Price, the number of shares of Common Stock, calculated to the nearest full share, obtained by: (i) multiplying the (A) number of Conversion Shares that may be acquired pursuant to this Note immediately prior to the adjustment of the Conversion Price by (B) the Conversion Price in effect immediately prior to its adjustment, and (ii) dividing the product so obtained in clause (i) by the new Conversion Price.

 

(g)     Prior Notice of a Sale of the Company. Notwithstanding any provision of this Note to the contrary, in the event that the Company consummates a Sale of the Company prior to the conversion or repayment in full of this Note, the Company will give the Holder at least five days prior written notice of the anticipated closing date of such Sale of the Company.

 

6.      Expenses. In the event of any failure of the Company to pay all amounts due upon a demand made pursuant to Section 2 of this Note, the Company shall pay all reasonable attorneys’ fees and court costs incurred by Holder in enforcing and collecting this Note.

 

7.      Waiver. The Company hereby waives demand, notice, presentment, protest and notice of dishonor.

 

8.      Notices. Any notice or other communications to be given or that may be given pursuant to this Note shall be deemed to have been given: (x) three (3) calendar days after the deposit of such notice or communication in the United States Mail, registered or certified, return receipt requested, with proper postage affixed thereto; (y) on the first Business Day after depositing such notice of communication with Federal Express, Express Mail, or other expedited mail or package delivery service guaranteeing delivery no later than the next Business Day if next Business Day delivery service has been requested and paid for (or on such subsequent Business Day as such delivery service has been requested, guaranteed and paid for); or (z) upon delivery if hand delivered or telecopied to the appropriate address and person as provided hereinabove or to the person to whose attention the notice is to be given to the other parties in the manner hereinabove provided; provided, however, that any notice changing Holder’s address or wire address shall be effective only upon receipt by the Company.

 

9.      Governing Law.

 

(a)      This Note shall in all respects be governed by and construed in accordance with the laws of the State of Florida, without giving effect to the principles of conflict of laws thereof.

 

(b)      Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereunder shall be brought solely in the courts of the State of Florida located in Hillsborough County, Florida, or, if it has or can acquire jurisdiction, in the United States District Court for the Middle District of Florida (Orlando or Tampa Division), and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and waives any objection to the venue or the convenience of forum of any such courts. 

 

B2-4

 

10.     Modification; Waiver. No term of this Note may be amended or waived without the prior written consent of the Company and the Holder.

 

11.     Assignment. Neither the Company nor the Holder may assign or transfer this Note without the prior written consent of the other party (not to be unreasonably withheld) provided that, in no event shall this Note or any interest herein be transferable, in whole or in part, to any person or entity under circumstances that would be reasonably likely to violate or trigger a consent or other approval requirement under applicable laws, including but not limited to U.S. securities laws, the Foreign Corrupt Practices Act, FINSA, laws restricting money transfers and payments to persons or entities located in certain restricted countries, foreign nationals identified on any restricted list, and associated regulations as in existence at the time, and the laws and regulations of any other country. Any such written notice shall set forth in reasonable detail the identity of the new Holder(s) and the terms of transfer of this Note (including a release by the applicable Holder of any right to receive any payments hereunder) and the Company shall be obligated to register the transfer of this Note and make payments to any Holder hereunder only if the Company determines such transfer or payment is not restricted or prohibited by any such laws (and the due date of any such payment shall be extended by the length of time that any such legal restriction or prohibition exists). This Note shall inure to the benefit of Holder, its successors and assigns, and to any person to whom Holder may grant an interest in any of the indebtedness evidenced hereby in compliance with the foregoing restrictions, and shall be binding upon the Company and its successors and assigns. No person or entity not a direct party hereto shall be entitled to enforce any rights or obligations hereunder as a third party beneficiary or otherwise.

 

12.     Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.

 

B2-5

 

13.     Time of Essence. Time is of the essence of the payment and performance of this Note.

 

14.     Miscellaneous. The Company and Holder have participated jointly in the negotiation and drafting of this Note. In the event an ambiguity or question of intent or interpretation arises, this Note shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Note. No delay by Holder in enforcing its rights hereunder or otherwise, shall prejudice Holder’s rights to enforce this Note. Neither Party to this Note will be liable to the other for any failure or delay in performance under this Note due to circumstances beyond its reasonable control including, without limitation, Acts of God, labor disruption, war, terrorist threat or government action, or lack of availability of wire transfer systems or other international or national systems; provided, that if either party is unable to perform its obligations under this Note for one of these reasons it shall give prompt written notice thereof to the other party and the time for performance, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.

 

15.     Agreement by Holder. By its acceptance of this Note, Holder agrees to be bound by the terms hereof.

 

16.     Documentary Stamp Taxes. All required Florida documentary stamp taxes due in connection with this Note have been paid.

 

[Signature Page Follows]

 

B2-6

 

 

	Kingfish Holding Corporation, a Delaware corporation
	By:
	Name:
	Title:

 

HOLDER:

 

______________________________

James K. Toomey

 

[Signature page to Convertible Promissory Note No. 12 of Kingfish Holding Corporation]

 

B2-7

 

NOTICE OF EXERCISE

 

(To be executed by the Holder desiring to exercise the right to convert this Note into Units of KINGFISH HOLDING CORPORATION, a Delaware corporation)

 

The undersigned Holder of a Convertible Promissory Note (Note No. 12) hereby elects to exercise his or her Optional Conversion Right, pursuant to the provisions of the Note dated May 13, 2015 issued to the Holder by Kingfish Holding Corporation, a Delaware corporation, to receive that number of shares of Common Stock into which the outstanding principal amount of, and accrued and unpaid interest on, this Note is convertible at the Conversion Price at the address set forth below.

 

Dated:                             ,

 

	Printed Name:
	Signature:
	Address:

 

(Signature must conform in all respects to the name of holder as specified on the face of this Note.)

 

 

B2-8

---

 

EXHIBIT 31.1

Chief Executive Officer Certification

Pursuant To Section 302 of

the Sarbanes-Oxley Act of 2002

 

I, Ted Sparling, certify that:

 

1.	I have reviewed this quarterly report on Form 10-Q of Kingfish Holding Corporation (formerly Kesselring Holding Corporation) for the quarter ended March 31, 2015;
2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;
3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.	The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal controls over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
	(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
	(b)	Designed such internal controls over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purpose in accordance with generally accepted accounting principles;
	(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
	(d)	Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.	The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):
	(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
	(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

May 13, 2015	By:	/s/ Ted Sparling
		Ted Sparling
		Chief Executive Officer (Principal Executive Officer)

 

 

EXHIBIT 31.2 

Chief Financial Officer Certification

Pursuant To Section 302 of

the Sarbanes-Oxley Act of 2002

 

I, James LaManna, certify that:

 

1.	I have reviewed this quarterly report on Form 10-Q of Kingfish Holding Corporation (formerly Kesselring Holding Corporation) for the quarter ended March 31, 2015;
2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;
3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.	The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal controls over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
	(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
	(b)	Designed such internal controls over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purpose in accordance with generally accepted accounting principles;
	(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
	(d)	Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.	The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function):
	(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
	(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

May 13, 2015	By:	/s/ James LaManna
		James LaManna
		Chief Financial Officer (Principal Financial Officer)

 

 

EXHIBIT 32.1

Certification of the Chief Executive Officer Pursuant to

18 U.S.C. Section 1350,

As Adopted Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

 

In connection with the Quarterly Report of Kingfish Holding Corporation (formerly Kesselring Holding Corporation) (the "Company") on Form 10-Q for the quarterly period ending March 31, 2015 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Ted Sparling, as Chief Executive Officer of the Company, hereby certifies pursuant to 18 U.S.C. § 1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, to the best of his knowledge, that:

 

	(1)	The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and
	(2)	The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company for the dates and the periods covered by the Report.

 

A signed original of this written statement has been provided to Kingfish Holding Corporation and will be retained by Kingfish Holding Corporation and furnished to the Securities and Exchange Commission or its staff upon request.

 

 

May 13, 2015	By:	/s/ Ted Sparling
		Ted Sparling
		Chief Executive Officer (Principal Executive Officer)

 

EXHIBIT 32.2

Certification of the Chief Financial Officer Pursuant to

18 U.S.C. Section 1350,

As Adopted Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

 

In connection with the Quarterly Report of Kingfish Holding Corporation (formerly Kesselring Holding Corporation) (the "Company") on Form 10-Q for the quarterly period ending March 31, 2015 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, James LaManna, as Chief Financial Officer of the Company, hereby certifies pursuant to 18 U.S.C. § 1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, to the best of his knowledge, that:

 

	(1)	The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and
	(2)	The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company for the dates and the periods covered by the Report.

 

A signed original of this written statement has been provided to Kingfish Holding Corporation and will be retained by Kingfish Holding Corporation and furnished to the Securities and Exchange Commission or its staff upon request.

 

May 13, 2015	By:	/s/ James LaManna
		James LaManna
		Chief Financial Officer (Principal Financial Officer)