Exhibit
4.1


 


 


DESCRIPTION
OF THE COMMON STOCK OF EMPIRE PETROLEUM CORPORATION


 


Description
of the Common Stock of Empire Petroleum Corporation Registered


Under
Section 12 of the Securities Exchange Act of 1934


 


The
following summary of the common stock, par value $0.001 per share (the “common stock”) of Empire Petroleum Corporation, a
Delaware corporation (the “Registrant,” “we,” “our” or “us”). The following summarizes
the terms and provisions of the common stock. The following summary does not purport to be complete and is qualified in its entirety
by reference to our Amended and Restated Certificate of Incorporation (the “certificate of incorporation”) and our Amended
and Restated Bylaws (the “bylaws”).


 


General


 


The
total number of shares of all classes of stock that we have authority to issue is 200,000,000, consisting of (a) 190,000,000 shares of
common stock and (b) 10,000,000 shares of preferred stock, par value $0.001 per share (“preferred stock”).


 


Common
Stock


 


Our
outstanding shares of common stock are fully paid and nonassessable.


 


Voting
Rights


 


The
holders of shares of common stock are entitled to one vote per share on all matters to be voted on by the holders of our common stock,
including the election of directors. Holders of common stock do not have cumulative voting rights with respect to the election of directors
or as to any other matter to be voted upon by the holders of common stock. Our bylaws may be amended by:


 


		•	our
                                            board of directors without the vote or consent of the holders of our common stock; or 



 


		•	by
                                            vote or consent of the holders of at least 65 percent of our issued and outstanding common
                                            stock and any voting preferred stock (other than our Series A Voting Preferred Stock), voting
                                            as a single class.



 


 






     


     


    

 


 


Dividend
and Liquidation Rights


 


Subject
to the rights of any then-outstanding shares of our preferred stock, holders of common stock are entitled to receive ratably such dividends
as may be declared by our board of directors in its discretion from funds legally available. In the event of our liquidation, dissolution,
or winding up, holders of common stock are entitled to share ratably in all assets remaining after payment of liabilities, subject to
any preferential liquidation rights of any preferred stock that at the time may be outstanding. Our credit agreement limits the amount
of cash dividends that we can pay on our common stock.


 


No
Preemptive, Conversion or Redemption Rights


 


The
holders of our common stock have no preemptive, subscription, conversion or redemption rights, and are not subject to further calls or
assessments by us.  There are no sinking fund provisions applicable to our common stock.


 


Anti-Takeover
Effects of Delaware Law and Provisions of our Certificate of Incorporation and Bylaws


 


Delaware
law and our certificate of incorporation and bylaws contain provisions that may deter or render more difficult proposals to acquire control
of our company, including proposals a stockholder might consider to be in his, her or its best interest, impede or lengthen a change
in membership of the board of directors and make removal of our management more difficult.


 


Delaware
Business Combination Statute


 


The
General Corporation Law of the State of Delaware (the “DGCL”) provides certain restrictions on business combinations involving
interested parties. Under the DGCL, a corporation may not engage in a business combination with any holder of 15 percent or more of its
capital stock unless the holder has held the stock for three years or, among other things, the board of directors has approved the transaction.
Our board of directors could rely on this provision of the DGCL to prevent or delay an acquisition of us. 


 


Advance
Notice Provisions


 


Our
bylaws contain advance notice requirements that our stockholders must meet before submitting proposals or director nominations to be
considered at stockholder meetings. As more fully described in the bylaws, only such business may be conducted at a stockholder
meeting as has been brought before the meeting by, or at the direction of, our board of directors or any committee thereof or by a
stockholder who has given our Secretary timely written notice, in proper form, of the stockholder’s intention to bring that
business before the meeting. In addition, only persons who are nominated by, or at the direction of, our board of directors or any committee
thereof or who are nominated by a stockholder who has given timely written notice, in proper form, to our Secretary prior to a
meeting at which directors are to be elected will be eligible for election to the board of directors.


 





     


     


    




 


 


To
be timely, a stockholder’s notice regarding a proposal or director nomination to be brought before an annual meeting must be delivered
to our Secretary:


 


		•	not
                                            later than the close of business on the 90th day and not earlier than the close of business
                                            on the 120th day prior to the anniversary of the previous year’s annual meeting if
                                            such meeting is to be held on a day which is no more than 30 days in advance of the previous
                                            year’s annual meeting or not later than 60 days after the anniversary of the previous
                                            year’s annual meeting; and



 


		•	with
                                            respect to any other annual meeting, including in the event no annual meeting was held in
                                            the previous year, not later than the close of business on the later of the 90th day prior
                                            to the annual meeting and the 10th day following the day on which public disclosure is first
                                            given of the date of the annual meeting, and not earlier than the 120th day prior to the
                                            annual meeting.



 


If
we call a special meeting of stockholders for the purpose of director elections, a stockholder’s notice of director nominations
will be considered timely if the stockholder delivers the notice to our Secretary not later than the close of business on the later of
the 90th day prior to the special meeting and the 10th day following the day on which public disclosure is first given of the date of
the special meeting and of the nominees proposed by the board of directors, and not earlier than the close of business on the 120th day
prior to the special meeting.


 


The
bylaws also specify requirements as to the content of a stockholder’s notice.


 


In
some instances, these provisions may preclude our stockholders from bringing proposals or making nominations for directors at stockholder
meetings.


 


Removal
of Directors


 


Our
certificate of incorporation provides that any director may be removed with or without cause but only by the affirmative vote of the
holders of the shares of the class or series of stock entitled to elect such director or directors voting separately and as a single
class.


 


Action
by Stockholders Without a Meeting


 


Our
certificate of incorporation provides that, except as otherwise provided in the terms of any outstanding shares of our preferred stock,
stockholders may only take action by written consent without a meeting of stockholders two times in any calendar year.


 


 


 


 




     


     


    

 


Special
Meetings of Stockholders


 


Our
bylaws provide that special meetings of stockholders may be called at any time only by our board of directors, either Co-Chairman of
the board of directors or the President or by our Secretary upon the request from stockholders of record who own, in the aggregate, at
least 20 percent of the voting power of our outstanding shares entitled to vote on the matter or matters to be brought before the special
meeting. The only business that may be conducted at a special meeting of stockholders is that business specified in the notice of meeting.


 


Issuance
of Preferred Stock


 


Our
certificate of incorporation authorizes a class of undesignated preferred stock consisting of 10,000,000 shares. Preferred stock may
be issued from time to time in one or more series, and our board of directors, without further approval of the stockholders, is authorized
to fix the rights, preferences, privileges and restrictions applicable to each series of preferred stock, subject to certain limitations
as set forth in the certificate of incorporation. The purpose of authorizing the board of directors to determine these rights, preferences,
privileges and restrictions is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred
stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things,
adversely affect the voting power and the dividend and liquidation rights of the holders of our common stock and, under certain circumstances,
make it more difficult for a third party to gain control of us.


 


Series
A Voting Preferred Stock


 


As
of March 8, 2022, we have six shares of Series A Voting Preferred Stock issued and outstanding.  The Series A Voting Preferred
Stock was issued in connection with the strategic investment in us by Energy Evolution (Master Fund), Ltd. (the “Fund”). 
For so long as the Series A Voting Preferred Stock is outstanding, our board of directors will consist of six directors.  Three
of the directors are designated as the Series A Directors and the three other directors (each, a “common director”) are elected
by the holders of common stock and/or any preferred stock (other than the Series A Voting Preferred Stock) granted the right to vote
on the common directors.  Any Series A Director may be removed with or without cause but only by the affirmative vote of the holders
of a majority of the Series A Voting Preferred Stock voting separately and as a single class.  The holders of the Series A Voting
Preferred Stock have the exclusive right, voting separately and as a single class, to vote on the election, removal and/or replacement
of the Series A Directors.  Holders of common stock or other preferred stock have no right to vote on the Series A Directors. 
The approval of the holders of the Series A Voting Preferred Stock, voting separately and as a single class, is required to authorize
any resolution or other action to issue or modify the number, voting rights or any other rights, privileges, benefits or characteristics
of the Series A Voting Preferred Stock, including without limitation, any action to modify the number, structure and/or composition of
our current board of directors.


 


 


 


 


 




     


     


    

 


Our
board of directors annually elects two of its members to serve as co-chairs of the board (each, a “Co-Chairman”).  One
Co-Chairman of the board is elected by and from the common directors and the other Co-Chairman is elected by and from the Series A Directors
(the “Series A Co-Chairman”).  In the case of any tie vote or deadlock of the board of directors, the Series A Co-Chairman
has the deciding, tiebreaking vote.


 


The
Series A Voting Preferred Stock is held by Phil Mulacek, one of the principals of the Fund, as the Fund’s designee (the “Initial
Holder”). Mr. Mulacek is also the Series A Co-Chairman.  The Series A Voting Preferred Stock may be transferred only to certain
controlled affiliates of the Initial Holder (“Permitted Transferees”), and the voting rights of the Series A Voting Preferred
Stock are contingent upon the Initial Holder and Permitted Transferees (collectively, the “Series A Holders”) holding together
at least 3,000,000 shares of our outstanding common stock.


 


The
Series A Holders have effective control of our board of directors for so long as the voting rights of the Series A Voting Preferred Stock
remain in effect.


 


Supermajority
Vote for Amendments to Our Certificate of Incorporation


 


Our
certificate of incorporation provides that further amendments to the certificate of incorporation (other than to change our name or registered
agent and office and except as otherwise expressly provided for in our certificate of incorporation) require majority approval of our
entire board of directors and approval by the stockholders holding 80 percent of the common stock and preferred stock with applicable
voting rights voting together as a single class. The holders of our common stock, however, are not entitled to vote on any modification
or amendment of any certificate of designation if such certificate of designation grants or reserves that right to the holders of the
preferred stock.


 


Certain
Fundamental Transactions Require a Supermajority Stockholder Vote


 


Our
bylaws provide that the following actions must be approved by the stockholders holding 80 percent of our outstanding common stock and
preferred stock with applicable voting rights voting together as a single class:


 


		•	a
                                            transaction in which any person becomes the beneficial owner of our securities representing
                                            50 percent or more of the total voting power represented by our then outstanding voting securities;



 


		•	a
                                            merger or consolidation in which we are a party and in which our equity holders before such
                                            merger or consolidation do not retain at least a majority of the beneficial interest in the
                                            voting equity interests of the entity that survives or results from such merger or consolidation;



 


 


 


 




     


     


    

 


 


		•	a
                                            sale or disposition by us of all or substantially all of our assets, other than in the ordinary
                                            course of business; or



 


		•	subject
                                            to certain exceptions as described in the bylaws, any transaction to sell, transfer, assign,
                                            pledge, collateralize, encumber and/or otherwise leverage the assets of or any portion of
                                            our equity ownership of Empire New Mexico LLC, d/b/a Green Tree New Mexico, LLC and Green
                                            Tree New Mexico.



 


Exclusive
Forum


 


Our
bylaws provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
(or, if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) shall be the sole
and exclusive forum for:


 


		•	any
                                            derivative action or proceeding brought on our behalf; 



 


		•	any
                                            action asserting a claim of breach of a fiduciary duty owed by any director, officer, stockholder,
                                            employee or agent to us or our stockholders; 



 


		•	any
                                            action asserting a claim arising pursuant to any provision of the DGCL, our certificate of
                                            incorporation or our bylaws; or 



 


		•	any
                                            action asserting a claim governed by the internal affairs doctrine; 



 


in
each case, subject to the court having personal jurisdiction over the defendants.  If any action the subject matter of which is
within the scope of this exclusive forum provision is filed in a court other than a court located with the State of Delaware (a “foreign
action”) in the name of any stockholder, such stockholder shall be deemed to have consented to:


 


		•	the
                                            jurisdiction of the state and federal courts located within the State of Delaware in connection
                                            with any action brought in such court to enforce this exclusive forum provision; and



 


		•	having
                                            service of process made upon such stockholder in any such enforcement action by service upon
                                            such stockholder’s counsel in the foreign action as agent for such stockholder. 



 


In
addition, our bylaws provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock
is deemed to have notice of and consented to this exclusive forum provision. This exclusive forum provision is intended to apply to claims
arising under Delaware
state law and is not intended to apply to claims arising under the Securities Act of 1933, as amended, or the Exchange Act.


 





     


     


    




 


 


Listing


 


Our
common stock is listed on the NYSE American stock exchange under the symbol “EP.”


 


Transfer
Agent and Registrar


 


Securities
Transfer Corporation is transfer agent and registrar for our common stock.