EX-1 2 tm2424523d1_ex1.htm EXHIBIT 1

附件1

 

和解協議

 

本和解協議訂於2024年9月23日生效，由Bitfarms Ltd.（以下簡稱「協議」）與Riot Platforms, Inc.（以下簡稱「Bitfarms” 或“公司”權益代理」）Riot），他們各自同意受本協議約束（以下簡稱為「雙方“受託人”派對”).

 

鑒於 暴動已經徵用了公司普通股東的特別會議（“股東”）在公司資本中 （“公司”）旨在替換公司的某些董事（“徵用”）提名人，而公司作為回應已安排了一場股東特別大會，預定在2024年11月6日舉行（“申請召開會議”);

 

而 鑑於 雙方希望完全解決徵收事宜；

 

而 鑑於 根據本協議條款，作為一名重要股東，Riot應有權提名一位合格的個人 選舉為Bitfarms的董事會成員（“董事會”），須遵守本協議條款。

 

現在 因此，本協議見證 鑑於各方在此包含的契約和協議 以及其他良好且有價值的考慮（各方特此確認已收到並足夠），各方 同意如下：

 

1.權威; 陳述與保證

 

1.1           Riot明確聲明並擔保，其擁有，具有對投票90,110,912普通股的獨家控制或指導權，或擁有對該公司的其他證券擁有獨家指導權或直接投票權，並且目前並未持有任何該公司其他證券的利益，包括任何旨在產生與普通股擁有相對應的經濟利益和風險的掉期交易或對沖交易或其他衍生工具安排，無論是否任何上述事項會導致有益擁有權，並無論是否通過交付普通股，支付現金或以其他形式解決，並無論是否存在任何此類合約或安排下的空頭部位；對於本協議的目的，“標的證券”涵蓋普通股以及該公司時常合法或有利益擁有權能就該公司董事會選舉表決資格的任何其他證券，無論該擁有權是直接還是間接由Riot擁有，或者Riot在投票方面直接或間接行使控制或指導權的證券，或者任何其他Riot具有表決權或其他方面有投票權的證券。 就本協議而言，如果Riot是一種證券的有益擁有人或者具有有權控股該證券的權利或義務，無論是否在條件下進行，可以一次性或一系列交易取得該證券的有益擁有權，Riot則被視為擁有或有益擁有一種證券。 就本協議而言，“人士”將被廣泛解釋，包括但不限於任何個人，一般或有限合夥公司，股份有限公司或無限責任公司，合資企業，遺產，信託，集團，協會或任何其他種類或結構的實體。

 

 

 

 

1.2           Riot未（直接或間接地）曾向任何人授予或同意授予任何代理權或委託代理人、代表權或其他任何有關對待的議決權，或者與任何人訂立關於投票信託、投票集團或其他方面的協議以行使對待權、召開股東會或提供任何類型同意或批准有關對待證券的。Riot及其聯屬公司和聯繫公司均尚未組織或成為“集團”（如證交所法（以下定義）所制定的第13d-5(b)(1)條）與任何其他人就公司或普通股有關。

 

1.3           Riot 公司並未也永遠不會直接或間接地以任何現金、數字貨幣或其他形式的數字資產、證券（包括但不限於，任何可轉換或行使權利或交換成證券的期權或可轉換證券的選擇權，或任何分紅協議或安排）或任何其他形式的補償，賠償 Riot 董事（如下定義）作為公司服務。

 

1.4           公司向Riot聲明並保證，安德雷斯·芬基爾斯坦已在此前或當前日期辭去了董事會職務，董事會已經接受了這份辭呈，因此目前董事會上存在一個空缺。

 

1.5           每個方代表且保證對其他方（並承認其他方是依賴於這些陳述和保證）：

 

(a)本協議已由其適當執行和交付，假定其他方適當執行和交付本協議，本協議構成其合法、有效且具約束力的義務，根據其條款可強制執行，受一般適用法律及破產、無力清償及其他影響債權人權益的法律和一般公平原則約束；

 

(b)它具有必要的法律能力和權力，以簽訂本協議並履行其在此之下的義務；

 

(c)無論是其簽署和交付本協議，還是履行其在此項義務，都不會：

 

(i)導致任何違反或構成違約（或一個帶有通知、時間給予或兩者兼具成為違約的事件） 對其有約束力的任何協議的任何條款、條件或規定中，或對 Raiot 案，可能對其遵守本協議的義務產生實質不利影響的違反或違約；或

 

(ii)違反或衝突(A)其組織文件或(B)任何判決、訂單、通知、裁定、法令、法規、條例、規定、或與其或其資產有關的一切適用於其資產，包括Riot的主體證券的法案。

 

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2.RIOt 提名者

 

2.1(a) 董事會應立即委任艾米·弗里德曼 （」暴動提名人」）向董事會。

 

(b)提名委員會應被任命為（i）董事會的治理和提名委員會，（ii）董事會的薪酬委員會，以及（iii）董事會現時或將來組成的每個獨立董事“特別委員會”，前提是提名委員應對該“特別委員會”的授權獨立。毫無疑問，董事會已確定Amy Freedman對Bitfarms和Riot均為獨立。

 

(c)在任命Riot提名人之後，董事會應盡快（並在寄出公司為所需會議寄出通知前）提名一名董事會新成員（"新董事”）參加所需會議，該提名應經董事會批准。

 

根據第2.1和第3條款，公司應採取一切商業上合理的措施，以便在被要求的會議結束後及在本條所定義的期間內，董事會應由Ben Gagnon、Edith Hofmeister、Brian Howlett、Fanny Philip、叛亂候選人和新任董事（以下簡稱“新董事會”）組成。在這方面，根據第3條，就任何股東大會選舉董事的事項，公司應採取一切必要和適當的行動，確保（a）代表公司或代表公司徵集選票，支持選舉新董事會成員，以及（b）在適用的管理信息通函和其他由公司或代表公司向股東提供的代理徵集材料中，新董事會成員得到認可和推薦。

 

3.徵用會議並選舉董事

 

3.1           脫機會議將於2024年11月6日舉行（或董事會同意的最遲日期不晚於2024年11月20日），此次會議的登記日仍應爲2024年9月26日，除非Riot和Bitfarms另有書面協商。儘管如此，Riot同意，自本協議簽署之日起，即被視爲已無條件撤回要求以及對股東和持有證券人名單以及非持異議受益所有者名單的各項請求。

 

3.2           被徵召的會議應僅召開，目的是考慮和表決批准以下事項（統稱爲“決議”):

 

(a)將董事人數設置爲六（6）人；

 

(b)選舉新董事進入董事會；和

 

(c)批准並覈准公司於2024年7月24日通過的公司股東權益計劃（“權利計劃”).

 

3.3           在被徵用的會議上，Riot將投票（或導致投票）支持每項決議。此外，Riot特此契約並同意，在任何股東大會上選舉董事的情況下，如果董事/提名人包括Riot提名人，則應使被徵用的證券被計算爲出席目的並投票（或導致投票）支持新董事會成員或根據本協議確定的其或她的替代成員的選舉。

 

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3.4           在任期內，董事會成員不得超過六（6）名。

 

3.5           在 如果 Riot 被提名人因任何原因停止擔任公司董事職務，Riot 有權提名 取代 Riot 被提名人的個人以及任何以此方式提名的個人無論出於何種目的均應爲 Riot 被提名人；前提是， 但是，在任何情況下，Riot 被提名人均不得是 (a) 不符合適用公司要求的人， 證券和其他法律以及多倫多證券交易所和納斯達克股票市場的規則（統稱爲”交易所”) 或 (b) 就以下目的而言，不是 「獨立於」 Riot 或公司：(i) National Instrument 52-110 — 審計委員會，（ii）《交易所規則》和（iii）美國證券交易所的第10A-3條 經修訂的 1934 年法案（”《交易法》”）（第 (a) 和 (b) 條統稱爲”董事資格”）。 此外，每位Riot被提名人應同意遵守所有政策、程序、流程、守則、規則、標準和準則 適用於董事會成員，包括但不限於公司的商業行爲和道德準則、披露和保密準則 政策與證券交易政策（”公司政策”).

 

3.6           在任何新董事會成員（除了暴雪提名人）因任何原因不再擔任公司董事職務的情況下，董事會其他成員（包括暴雪提名人）有權提名替換該提名人，並經多數票決，任何被提名的個人在此後對所有目的均爲新董事會成員。

 

3.7           董事會或公司均無權將騷亂提名人從董事會中撤職，除非該提名人此前已被公司股東大會決議罷免，未獲得公司股東按公司的多數投票政策選舉，或者依適用法律不具資格擔任董事，未遵守公司政策，或者不符合董事資格。

 

3.8           公司承諾並同意：(a)根據本協議提名或任命的Riot代表應受到公司現有董事和高級管理人員保險政策（不時修訂的）的覆蓋，其覆蓋範圍和條件與董事會其他成員受到和適用的相同；(b)公司應與Riot代表簽訂基本相同的賠償協議，幷包含與公司與董事會其他成員簽訂的協議基本相同的條款。

 

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4.保密

 

Riot承認，一旦被任命爲董事會成員，Riot提名人應向公司承擔信託責任和忠誠責任，其中包括向公司承擔保密責任（統稱爲「」職責”）。任何公司政策，無論目前有效還是可能被修改或採納的，都不得以任何方式阻止董事會成員（包括Riot提名人）與Riot、其關聯公司或其及其代表開展對話，只要該董事會成員遵守其職責和公司政策。此外，各方承認並同意（i）Riot、其關聯公司或其及其代表可以與公司的任何董事、高管或顧問進行私下溝通，只要此類私下溝通（x）不會合理地需要公司、Riot或此類人員披露該溝通內容，並且（y）已遵守第6節的規定；和（ii）在其職責和公司政策的條款規定範圍內，這些人員可以與Riot、其關聯公司或其及其代表進行討論。

 

5.PRE-EMPTIVE RIGHT

 

5.1           In connection with the issuance of Equity Securities (as defined below) for cash consideration (the “Issuance”), and provided Riot beneficially owns at least fifteen percent (15%) of the then issued and outstanding Common Shares, Riot shall have the right to purchase all or a portion of its Pro Rata Share (as defined below) of all Equity Securities, other than the Equity Securities excluded by Section 5.4, that the Company may, from time to time, propose to sell and issue (the “Offered Securities”). Unless otherwise agreed to by Riot and the Company in writing, such purchase shall be made by way of private placement (a “Pre-Emptive Right Closing”). For purposes of this Section 5, the “Pro Rata Share” is equal to the ratio of (i) the number of Common Shares held by Riot (assuming the conversion of any Equity Securities held by Riot that are convertible into Common Shares and otherwise on a non-diluted basis) immediately prior to the Issuance to (ii) the aggregate of all Common Shares issued and outstanding immediately prior to the Issuance (assuming the conversion of any Equity Securities held by Riot that are convertible into Common Shares and otherwise on a non-diluted basis). The term “Equity Securities” shall mean (A) Common Shares, (B) any security (including debt instruments) convertible, with or without consideration and whether or not on contingency or otherwise, into any Common Shares (including any option to purchase such a convertible security), (C) any security carrying any warrant or right to subscribe for or purchase any Common Shares and (D) any such warrant or right. For purposes of calculating whether Riot beneficially owns at least fifteen percent (15%) of the then issued and outstanding Common Shares pursuant to this Section 5.1, Riot shall be deemed to not own such Common Shares represented by any agreement reached to reduce Riot’s economic or voting exposure to Common Shares.

 

5.2           If the Company proposes to sell and issue any Offered Securities, it shall, as soon as reasonably practicable after the public announcement of the proposed sale of the Offered Securities, but in any event at least ten (10) business days prior to the expected completion date of the Issuance (or in the case of a Bought Deal (as defined below), then as soon as reasonably practicable after the Company is seriously considering such a Bought Deal offering or is in advanced discussions with underwriter(s) in connection thereto, but in any event at least five (5) business days prior to the expected completion date of the Issuance ), give Riot a written notice of such intention describing the Offered Securities, the price and the terms and conditions upon which the Company proposes to issue the same. Riot shall have five (5) days from the receipt of any such written notice to agree to purchase all or a portion of its Pro Rata Share of the Offered Securities for the price and upon the terms and conditions specified in the notice by giving written notice to the Company and stating therein the quantity of Equity Securities to be purchased; provided that if the Company provides a written notice with respect to a Bought Deal, Riot shall have such time as is reasonably practicable in the circumstances having regard to the time provided to the Company to determine to accept such Bought Deal but in no case less than two (2) business days from the time the Company advises Riot that the Company is intending to proceed with such a Bought Deal, together with the price range within which the Company is prepared to undertake such Bought Deal. Notwithstanding the foregoing, if the Company is not able to comply with, or it would be commercially impracticable to comply with, the time periods above prior to the closing of an Issuance, the Company shall comply with its obligations to Riot under this Section 5.2 as promptly as reasonably practicable following the closing of such Issuance. For purposes of this Section 5.2, “Bought Deal” means a fully underwritten offering on a bought deal basis pursuant to which an underwriter has committed to purchase securities of the Company pursuant to a “bought deal” letter prior to the filing of a prospectus.

 

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5.3           If Riot fails to exercise in full its pre-emptive rights as set forth in this Section 5, Riot shall be deemed to have not exercised such right, which right shall be deemed to have expired. The obligation of the Company to consummate the sale of Offered Securities to Riot under this Section 5 is subject to the fulfilment, prior to or at the closing of such sale, of each of the following conditions, any of which may be waived by the Company in writing:

 

(a)there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction which prohibits the consummation of the sale of Offered Securities to Riot under this Section 5 nor shall there be any investigation or proceeding pending before any court or governmental authority seeking to prohibit the consummation of the sale of Offered Securities to Riot under this Section 5 (excluding any action by the Company or its affiliates that is inconsistent with the purpose of this Section 5);

 

(b)no applicable law shall have been enacted by any governmental authority which prohibits the consummation of the sale of Offered Securities to Riot under this Section 5 or makes such consummation illegal;

 

(c)the closing of the issue and sale of the Offered Securities to any person other than Riot (if applicable) shall have occurred prior to, or shall occur concurrently with, the Pre-Emptive Right Closing;

 

(d)Riot shall execute such agreements in a form satisfactory to the Company, acting reasonably, as are legally required in the circumstances to document the exercise of the rights hereunder, which, for greater certainty, shall include confirmation that Riot is eligible to purchase the relevant securities pursuant to an exemption from applicable prospectus or registration requirements;

 

(e)           approval of the Shareholders shall not be required; and

 

(f)any stock exchange upon which the Common Shares are then listed, any securities regulator and any other governmental authority having jurisdiction and whose approval is required, shall have approved the issue and sale of the Offered Securities to Riot.

 

5.4           The pre-emptive rights established by this Section 5 shall not apply in respect of the issuance of Equity Securities in any of the following circumstances:

 

(a)securities issued under the Rights Plan if Riot or any of its affiliates is an “Acquiring Person” (as such term is defined in the Rights Plan);

 

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(b)Equity Securities issued in connection with bona fide bank debt or non-equity interim financing transactions with commercial bank lenders to the Company;

 

(c)Equity Securities issued, directly or indirectly, as consideration to a person who is at arm’s-length to the Company in a joint venture, merger, consolidation, acquisition or similar business combination (and if the Equity Securities are issued to securityholders of a reporting issuer or other public company in connection with such a business combination, such securityholders will be deemed to be arm’s length for the purpose of this clause if such public company is arm’s length to the Company), including, for greater certainty, the Equity Securities to be issued in connection with the acquisition of Stronghold Digital Mining, Inc. by the Company;

 

(d)Equity Securities issued to managers, officers, directors and employees of the Company or any of its subsidiaries in accordance with the terms of an employee or management incentive plan approved by the Board or Common Shares issued pursuant to the exercise or settlement of such securities;

 

(e)Equity Securities issued upon the conversion, exchange or the exercise of any then outstanding convertible, exchangeable or derivative Equity Securities so long as the applicable convertible, exchangeable or derivative Equity Security was issued in compliance with this Section 5 or prior to the date hereof;

 

(f)Equity Securities issued in connection with an at-the-market offering of the Company;

 

(g)Equity Securities of a subsidiary of the Company issued to the Company;

 

(h)Equity Securities issued on a pro rata basis to all holders of a class of Equity Securities in connection with any reclassification, recapitalization, distribution or similar event with respect to any equity interests in the Company;

 

(i)Equity Securities issued pursuant to a rights offering that is open to all Shareholders, including Riot; and

 

(j)Equity Securities issued on a pro rata basis to all of a class of Equity Securities as a dividend or other distribution on equity interests in the Company or equity interests in the Company resulting from any subdivision or combination of equity interests in the Company so excluded or on all equity interests in the Company then outstanding.

 

5.5           Except as otherwise specifically provided in this Section 5, each of Riot and the Company shall bear its own expenses incurred in connection with this Section 5 and in connection with all obligations required to be performed by each of them under this Section 5. To the extent that Riot has properly exercised its pre-emptive right under Section 5.2, subject to Sections 5.3, 5.4 and 5.6, the Company shall use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable law to consummate and make effective the sale of Offered Securities to Riot under this Section 5, including obtaining any governmental, regulatory, Exchange or other consents, transfers, orders, qualifications, waivers, authorizations, exemptions and approvals, providing all notices and making all registrations, filings and applications necessary or desirable for the consummation of the sale of Offered Securities to Riot under this Section 5, and shall keep Riot fully informed and, to the extent permitted by law and applicable governmental authorities, allow Riot to participate in any communications with such governmental authorities regarding the exercise of Riot’s rights hereunder.

 

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5.6           Notwithstanding the foregoing, the rights of Riot pursuant to this Section 5 shall terminate automatically if there is any material breach of this Agreement by Riot (including, without limitation, a failure to comply with the restrictions under Section 6) or if such breach is curable, upon five (5) days’ written notice by the Company to Riot if such breach has not been cured within such notice period, provided that the Company is not in material breach of this Agreement at the time of the breach if the breach is not curable, or if curable when such notice is given or prior to the end of the notice period.

 

6.STANDSTILL

 

Riot agrees that, during the Term, it will not, and it will direct its affiliates and its and their respective representatives acting on its and their behalf not to, directly or indirectly:

 

(a)without the approval of the Board, acquire or agree to acquire, or make any proposal or offer to acquire, directly or indirectly or in any manner whatsoever, any securities of the Company or any of its affiliates if as a result thereof it would beneficially own or exercise control or direction over 20% or more of the outstanding Common Shares, or take any steps or action that would lead to it becoming an Acquiring Person (as such term is defined in the Rights Plan), other than for the sole purpose of or in connection with making a take-over bid that is not exempt from the provisions of National Instrument 62-104 – Take-over Bids and Issuer Bids pursuant to Part 4 thereof or otherwise (such a take-over bid made by Riot or an affiliate thereof is referred to herein as a “Formal Bid”);

 

(b)acquire or dispose, or agree to acquire or dispose, of any related financial instrument (as defined in National Instrument 55-104 – Insider Reporting Requirements and Exemptions) of the Company or any of its affiliates, or relating to any Common Shares, other than for the purposes of reducing Riot’s economic or voting exposure to the Subject Securities;

 

(c)deposit any Subject Securities in any voting trust or subject any such securities to any arrangement or agreement with respect to the voting of any such shares, other than for the purposes of reducing Riot’s economic or voting exposure to the Subject Securities;

 

(d)vote any Subject Securities in a manner inconsistent with the provisions of this Agreement;

 

(e)either alone or with any other Shareholders, requisition a meeting of the Shareholders or put forward a shareholder proposal for the purpose of replacing or removing any director of the Company or otherwise altering the composition of the Board (including through any “withhold” or similar campaign) or for any other purpose inconsistent with the provisions of this Agreement;

 

8

 

 

(f)make or in any way participate in any solicitation of proxies to vote, or seek to advise or influence any other person with respect to the voting of, any securities of the Company inconsistent with the provisions of this Agreement;

 

(g)otherwise act alone or in concert with others to seek to control the management, Board or corporate policies of the Company or alter the corporate or governance structure of the Board or the Company, except as expressly permitted under this Agreement;

 

(h)solicit, initiate or engage in any discussions or negotiations regarding, or enter into any agreement, commitment or understanding regarding, or otherwise act jointly or in concert with any person in order to propose or effect, any take-over bid, tender or exchange offer, amalgamation, merger, arrangement or other business combination involving the Company or any of its affiliates or any other acquisition of securities or assets of the Company or any of its affiliates, other than for the sole purpose of Riot making a Formal Bid;

 

(i)institute, solicit or join as a party any litigation, arbitration, complaint or other proceeding against or involving the Company or any of its affiliates or any of its or their respective current or former directors or officers (including derivative actions), other than in connection with a Formal Bid, to enforce its rights under this Agreement or in direct response to any litigation, arbitration, complaint or other proceeding threatened or initiated by the Company or any of its affiliates or any of its or their respective current or former directors or officers;

 

(j)make any public disclosure of any consideration, desire, intention, plan or arrangement in connection with any of the foregoing, other than in connection with a Formal Bid; or

 

(k)enter into any arrangement, agreement or understanding (whether written or oral) with, or advise, assist, encourage or negotiate with, any other person to do any of the foregoing, including, without limitation, by providing financing for such purpose, or otherwise take or cause to be taken any action inconsistent with any provision of this Section 6;

 

provided, that the restrictions in this Section 6 shall terminate automatically upon the earliest of the following: (i) any material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Riot Nominee in accordance with Section 2.1, a failure to appoint a replacement Riot Nominee in accordance with Section 3.5, or a failure to issue the Press Release (as defined below) in accordance with Section 8) upon five (5) days’ written notice by Riot to the Company if such breach has not been cured within such notice period, provided that Riot is not in material breach of this Agreement at the time such notice is given or prior to the end of the notice period; (ii) the Company’s entry into a definitive written agreement with respect to any take-over bid, arrangement, amalgamation, merger, consolidation, acquisition, sale of all or substantially all assets, business combination, recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction involving the Company (including its subsidiaries and joint ventures or any of their respective securities or assets) that, if consummated, would result in the acquisition by any person or group of persons of more than 50% of the Common Shares or assets having an aggregate value exceeding 50% of the aggregate enterprise value of the Company (each, an “Extraordinary Transaction”); and (iii) the commencement of any take-over bid (by any person or group other than Riot and its affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Common Shares of the Company, where the Board does not recommend that the Shareholders reject such take-over bid (it being understood that nothing herein will prevent the Company from issuing a “stop, look and listen” communication in response to the commencement of any take-over bid). Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including but not limited to the restrictions in this Section 6) will prohibit or restrict Riot, its affiliates or its and their representatives from (A) making any public or private statement or announcement with respect to any Extraordinary Transaction that is publicly announced by the Company or a third party, (B) making any factual statement to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person from whom information is sought (so long as such process or request did not arise as a result of discretionary acts by any such person), (C) granting any liens or encumbrances on any claims or interests in favor of a bank or broker-dealer or prime broker holding such claims or interests in custody or prime brokerage in the ordinary course of business, which lien or encumbrance is released upon the transfer of such claims or interests in accordance with the terms of the custody or prime brokerage agreement(s), as applicable, (D) providing its views privately to the Company in accordance with Section 4, including making any confidential proposal to the Board that would not reasonably be expected to be required to be made public by either Riot or the Company or (E) voting, or soliciting votes, against any Extraordinary Transaction.

 

9

 

 

7.TERM

 

This Agreement is effective on the date hereof and shall terminate on the earlier of: (i) one business day following the conclusion of the annual meeting of Shareholders held in 2026 and (ii) June 1, 2026 (the “Term”). Notwithstanding the foregoing or any other provision herein, both parties agree that no provisions of this Agreement shall be enforceable during such period of the Term that Riot ceases to own legally or beneficially, directly or indirectly, at least 7.5% of the issued and outstanding Common Shares (it being understood that, for the avoidance of doubt, if and when the Common Shares legally or beneficially, directly or indirectly, owned by Riot increase to 7.5% or more of the issued and outstanding Common Shares, this Agreement shall continue to be enforceable during the Term).

 

8.PRESS RELEASE

 

Immediately following execution of this Agreement, a joint press release (the “Press Release”), in the form attached hereto as Schedule “A”, shall be issued by the Company and Riot announcing the matters set forth herein. Neither Party nor its directors or officers shall (a) make any public statements (including in any filing with securities regulators or any other regulatory or governmental agency, including an Exchange) that are inconsistent with, or otherwise contrary to, the statements in the Press Release or (b) except as required by law or the rules of any Exchange (in which case such Party must provide written notice (to the extent legally permissible) to the other at least two business days prior to making any such statement or disclosure required under securities laws or other applicable laws that would otherwise be prohibited by the provisions of this Section 8, and reasonably consider any comments of such other Party), issue or cause the publication of any press release or other public announcement with respect to the matters that are the subject of this Agreement, without the prior written consent of the Company and Riot. The signatories hereto acknowledge that a copy of this Agreement may be filed on SEDAR+ and EDGAR.

 

10

 

 

9.MUTUAL NON-DISPARAGEMENT

 

9.1           During the Term, the Company and Riot shall each refrain from making, and shall cause their respective affiliates and its and their respective directors, officers and employees not to make or cause to be made any statement or announcement including in any document or report filed with or furnished to securities regulatory authorities, an Exchange or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or that otherwise disparages, defames, slanders or is reasonably likely to damage the reputation of, (a) in the case of statements or announcements by Riot: the Company or any of its affiliates, subsidiaries or advisors, or any of its or their respective current or former officers, partners, directors or employees, and (b) in the case of statements or announcements by the Company: Riot and its advisors, their respective employees or any person who has served as an employee of Riot and its advisors. For greater certainty, prior to or contemporaneously with the execution of this Agreement, Riot shall shut down the website at http://www.abetterbitfarms.com/, and Riot shall not restore such website during the Term.

 

9.2           Notwithstanding the foregoing, nothing in this Section 9 or elsewhere in this Agreement shall prohibit Riot or the Company from (a) complying with any subpoena or other legal process or responding to a request for information from any governmental authority with jurisdiction over such person (so long as such process or request was not initiated by Riot or the Company, as applicable, on or after the date hereof) or (b) making any statement or disclosure required under securities laws or other applicable laws; provided that such Party must provide written notice (to the extent legally permissible) to the other at least one (1) business day prior to making any such statement or disclosure required under securities laws or other applicable laws that would otherwise be prohibited by the provisions of this Section 9, and reasonably consider any comments of such other Party.

 

9.3           Nothing shall prevent a Party or its representatives from responding without restriction to the other Party’s breach of this Agreement, in addition to the other remedies available in connection with such breach.

 

10.MISCELLANEOUS

 

10.1         Each signatory hereto hereby acknowledges and agrees, on behalf of itself and its affiliates, that irreparable harm would occur in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that Riot and the Company will be entitled to specific relief hereunder, including, without limitation, an injunction(s) to prevent and enjoin breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in the Courts of Ontario, in addition to any other remedy to which they may be entitled at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived.

 

11

 

 

10.2         All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be sufficiently given if delivered by delivery in person or if transmitted by email to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.2):

 

(i)if to the Company:

 

Bitfarms Ltd. 

110 Yonge Street, Suite 1601 

Toronto, Ontario, Canada M5C 1T4

 

Attention:      Ben Gagnon, Chief Executive Officer
Email:             bgagnon@bitfarms.com

 

with a copy (which shall not constitute notice) to:

 

McMillan LLP 

Brookfield Place, Suite 4400 

181 Bay Street 

Toronto, ON M5J 2T3

 

Attention:      Paul Davis

Email:             paul.davis@mcmillan.ca

 

and to

 

Skadden, Arps, Slate, Meagher & Flop LLP
One Manhattan West
New York, NY 10001

 

Attention:      Christopher Barlow 

Email:             christopher.barlow@skadden.com

 

and to

 

Peterson McVicar LLP

18 King St E Suite 902

Toronto, ON  M5C 1C4

 

Attention:      Dennis Peterson
Email:             dhp@petelaw.com

 

(ii)if to Riot:

 

Riot Platforms, Inc. 

3855 Ambrosia Street, Suite 301 

Castle Rock, CO 80109

 

Attention:      Jason Les, Chief Executive Officer
Email:             jles@riot.inc

 

12

 

 

with a copy (which shall not constitute notice) to: 

 

Paul, Weiss, Rifkind, Wharton & Garrison LLP 

1285 Avenue of the Americas 

New York, NY 10019-6064

 

Attention:      Adam Givertz
Email:             agivertz@paulweiss.com

 

and to

 

Davies Ward Phillips & Vineberg LLP 

155 Wellington Street West 

Toronto, ON M5V 3J7

 

Attention:      Vincent Mercier
Email:             vmercier@dwpv.com

 

10.3         This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. The signatories hereto hereby irrevocably agree to submit any dispute or proceeding in connection with this Agreement to the exclusive jurisdiction of the Commercial List of the Ontario Superior Court of Justice, and further agrees that service of any process, petition, application, notice or document by registered mail to the respective addresses set forth in Section 10.2 will be effective service of process for any such action, suit or proceeding brought against any signatory hereto in any such court. Each signatory hereto, on behalf of itself and its affiliates, irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the Commercial List of the Ontario Superior Court of Justice, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an improper or inconvenient forum.

 

10.4         This Agreement constitutes the entire agreement between the signatories hereto and supersedes and replaces any and all other agreements, arrangements or understandings between or among them.

 

10.5         Each signatory hereto agrees to execute and deliver all such documents and to do all such other acts and things as may be reasonably necessary from time to time to give full effect to the provisions and intent of this Agreement.

 

10.6         This Agreement and the rights of the parties hereto may not be assigned by any Party without the prior written consent of the other Party. All the terms and provisions of this Agreement shall be binding upon and shall enure to the benefit of the signatories hereto and their respective successors and permitted assigns.

 

13

 

 

10.7         Each Party will pay for its or his own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Agreement, including the fees and expenses of legal counsel, financial advisors, accountants, consultants and other professional advisors.

 

10.8         This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same document. Each signatory hereto shall be entitled to rely on delivery of an electronic copy of this Agreement, and acceptance by any Party of an electronic copy of this Agreement shall create a legal, valid and binding agreement between and among the signatories hereto in accordance with the terms hereof.

 

10.9         Time shall be of the essence hereof.

 

10.10       Each signatory hereto acknowledges that it has been advised to seek independent legal advice with respect to this Agreement and the signatory has either obtained such advice or consciously determined that it does not need such advice and that, in either case, it is entering into this Agreement of its own free will, under no compulsion or duress and that it understands and is aware of the terms and conditions hereof.

 

[Signature page follows]

 

14

 

 

IN WITNESS WHEREOF the Parties have executed this agreement as of the 23rd day of September, 2024.

 

  BITFARMS LTD.
   
  By: /s/ Brian Howlett
    Name: Brian Howlett
    Title: Chair

 

 

RIOT PLATFORMS, INC.

   
  By:  /s/ Jason Les                       
    Name: Jason Les
    Title: Chief Executive Officer

 

 

 

 

SCHEDULE “A”

 

See attached.

 

 

 

 

 

 

Bitfarms and Riot Announce Settlement

 

- Andrés Finkielsztain Steps Down from Board -

- Bitfarms Appoints Amy Freedman to Board of Directors -

- Board to Nominate an Independent Director for Election at Special Meeting -

- Standstill Agreement Through 2026 Annual Meeting -

 

This news release constitutes a “designated news release” for the purposes of the Company’s prospectus supplement dated March 8, 2024, to its short form base shelf prospectus dated November 10, 2023.

 

Toronto, Ontario and Brossard, Québec and Castle Rock, Colorado, (September 23, 2024) - Bitfarms Ltd. (NASDAQ/TSX: BITF) (“Bitfarms” or the “Company”), a global leader in vertically integrated Bitcoin data center operations, and Riot Platforms Inc. (NASDAQ: RIOT) (“Riot”), an industry leader in vertically integrated Bitcoin (“BTC”) mining, today announced that Bitfarms and Riot have entered into a settlement agreement (the “Agreement”) in advance of the Special Meeting of Bitfarms Shareholders (the “Special Meeting”) currently scheduled for November 6, 2024, which will now be held virtually.

 

Under the terms of the Agreement:

 

  · Andrés Finkielsztain has stepped down from Bitfarms’ Board of Directors (the “Board”).

 

  · Bitfarms has appointed Amy Freedman to its Board and the Governance and Nominating Committee and Compensation Committee of the Board, effective immediately.

 

  · Riot has agreed to withdraw its June 24, 2024 requisition, as amended, and to accept customary standstill provisions through the Bitfarms 2026 Annual Meeting, with certain exceptions.

 

  · At the Special Meeting, shareholders will be asked to approve an expansion of the Board from five members to six members, to elect an independent director nominated by the Board to serve as the sixth member of the Board, and to ratify the Company’s July 24, 2024, shareholder rights plan. Riot has agreed to vote in favour of these matters.

 

  · The Company has provided Riot with certain rights (subject to certain exceptions) to purchase shares of the Company provided Riot holds 15% or more of the outstanding common shares of the Company.

 

 

 

 

 

As a result of the agreement to nominate an additional director for election at the Special Meeting, the Special Meeting may be delayed, but in no event will it be held later than November 20, 2024. The Company will update its shareholders on the timing of the Special Meeting as soon as it can.

 

Brian Howlett, Independent Chairman of the Board, said “The Bitfarms Board is committed to effectively overseeing the execution of the Company’s strategic plan as we work to position Bitfarms to capitalize on the opportunities ahead. Additionally, we recognize the importance of refreshment and having the right mix of skills, experience and diversity, and we are always open to adding qualified candidates with valuable insights and perspectives to strengthen our Board. We are pleased to reach this agreement with Riot, which we believe is in the best interests of all Bitfarms shareholders.”

 

Mr. Howlett continued, “On behalf of the Board and the entire company, I thank Andrés for his invaluable contributions to Bitfarms over the last four years. He brought great insights to the boardroom with his extensive knowledge of the financial and crypto industry. We wish him well in his future endeavors. We look forward to leveraging Amy’s extensive experience advising public companies as the Board works together to enhance shareholder value.”

 

Ben Gagnon, Chief Executive Officer of Bitfarms, said, “We are pleased to reach this agreement with Riot and look forward to turning our full attention to executing our growth strategy. We remain focused on diversifying the business beyond Bitcoin mining into exciting and synergistic new areas like energy generation, energy trading, heat recycling and other high value revenue streams like HPC/AI.”

 

Jason Les, Chief Executive Officer of Riot, said, “This agreement represents a significant step to advance shareholder value creation at our respective companies and we are pleased to have reached this constructive resolution with Bitfarms. As Bitfarms’ largest shareholder, we look forward to supporting a reconstituted Bitfarms Board and continued engagement with management.”

 

A copy of the Agreement will be filed on Form 6-K with the U.S. Securities and Exchange Commission (“SEC”) and will be posted to the Company’s SEDAR+ profile at www.sedarplus.ca.

 

About Amy Freedman

 

Amy is a corporate governance and public capital markets expert with over 25 years of experience. She is currently an advisor to Ewing Morris and Co. Investment Partners, an alternative asset manager with both equity and credit strategies. In her role, Amy spearheads the fund’s engagement investment opportunities. Previously, she was CEO of Kingsdale Advisors, a leading shareholder services and advisory firm specializing in strategic and defensive advisory, governance advisory, proxy and voting analytics and investor communications. Ms. Freedman has spent over 15 years in capital markets as an investment banker with global firms including Stifel Financial Corp. (NYSE: SF) and Morgan Stanley (NYSE: MS).

 

 

 

 

 

Ms. Freedman is currently a director on the boards of Mandalay Resources Corporation (TSX: MND, OTCQB: MNDJF), Irish Residential Properties REIT plc (ISE: IRES) and American Hotel Income Properties REIT (TSX: HOT.UN, HOT.U). She holds an MBA and a JD from the University of Toronto.

 

About Bitfarms Ltd.

 

Founded in 2017, Bitfarms is a global vertically integrated Bitcoin mining data center company that contributes its computational power to one or more mining pools from which it receives payment in Bitcoin. Bitfarms develops, owns, and operates vertically integrated mining facilities with in-house management and company-owned electrical engineering, installation service, and multiple onsite technical repair centers. The Company’s proprietary data analytics system delivers best-in-class operational performance and uptime.

 

Bitfarms currently has 12 operating Bitcoin data centers and two under development situated in four countries: Canada, the United States, Paraguay, and Argentina. Powered predominantly by environmentally friendly hydro-electric and long-term power contracts, Bitfarms is committed to using sustainable and often underutilized energy infrastructure.

 

To learn more about Bitfarms’ events, developments, and online communities:

 

www.bitfarms.com

https://www.facebook.com/bitfarms/

https://twitter.com/Bitfarms  io

https://www.instagram.com/bitfarms/

https://www.linkedin.com/company/bitfarms/

 

About Riot Platforms, Inc.

 

Riot’s (NASDAQ: RIOT) vision is to be the world’s leading Bitcoin-driven infrastructure platform. Our mission is to positively impact the sectors, networks and communities that we touch. We believe that the combination of an innovative spirit and strong community partnership allows Riot to achieve best-in-class execution and create successful outcomes.

 

Riot, a Nevada corporation, is a Bitcoin mining and digital infrastructure company focused on a vertically integrated strategy. Riot has Bitcoin mining operations in central Texas and electrical switchgear engineering and fabrication operations in Denver, Colorado.

 

For more information, visit www.riotplatforms.com.

 

 

 

 

 

Cautionary Statement

 

Trading in the securities of the Company should be considered highly speculative. No stock exchange, securities commission or other regulatory authority has approved or disapproved the information contained herein. Neither the Toronto Stock Exchange, Nasdaq, or any other securities exchange or regulatory authority accepts responsibility for the adequacy or accuracy of this release.

 

Forward-Looking Statements

 

This news release contains certain “forward-looking information” and “forward-looking statements” (collectively, “forward-looking information”) that are based on expectations, estimates and projections as at the date of this news release and are covered by safe harbors under Canadian and United States securities laws. The statements and information in this release regarding the strength and positive outcome of board of director renewal, the date of the Special Meeting, the merits and potential of the Company’s growth plan and diversification strategy, other growth opportunities and prospects, statements regarding future growth, plans and objectives of the Company and the maximization of shareholder value, are forward-looking information. Any statements that involve discussions with respect to predictions, expectations, beliefs, plans, projections, objectives, assumptions, future events or performance (often but not always using phrases such as “expects”, or “does not expect”, “is expected”, “anticipates” or “does not anticipate”, “plans”, “budget”, “scheduled”, “forecasts”, “estimates”, “prospects”, “believes” or “intends” or variations of such words and phrases or stating that certain actions, events or results “may” or “could”, “would”, “might” or “will” be taken to occur or be achieved) are not statements of historical fact and may be forward-looking information.

 

This forward-looking information is based on assumptions and estimates of management of the Company and Riot, as applicable, at the time they were made, and involves known and unknown risks, uncertainties and other factors which may cause the actual results, performance, or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking information. Such factors include, among others, various risks relating to the operations and business of the Company, the future performance, liquidity and financial position of the Company and Riot, and uncertainties as to timing of the Special Meeting or the outcome. For further information concerning these and other risks and uncertainties, refer to (i) the Company’s filings on www.sedarplus.ca (which are also available on the website of the SEC at www.sec.gov), including the MD&A for the year-ended December 31, 2023, filed on March 7, 2024 and the MD&A for the three and six months ended June 30, 2024 filed on August 8, 2024, and (ii) Riot’s filings with the SEC, including the risks, uncertainties and other factors discussed under the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” of Riot’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on February 23, 2024, and the other filings Riot has made or will make with the SEC after such date, copies of which may be obtained from the SEC’s website at www.sec.gov. Although the Company and Riot have attempted to identify important factors that could cause actual results to differ materially from those expressed in forward-looking statements, there may be other factors that cause results not to be as anticipated, estimated or intended, including factors that are currently unknown to or deemed immaterial by the Company. There can be no assurance that such statements will prove to be accurate as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers should not place undue reliance on any forward-looking information. The Company undertakes no obligation to revise or update any forward-looking information other than as required by law.

 

 

 

 

 

Investor Relations Contacts:

 

For Bitfarms:

 

Bitfarms

Tracy Krumme

SVP, Head of IR & Corp. Comms.

+1 786-671-5638

tkrumme@bitfarms.com

 

Innisfree M&A Incorporated

Gabrielle Wolf / Scott Winter

+1 212-750-5833

 

Laurel Hill Advisory Group

1-877-452-7184

+1 416-304-0211

assistance@laurelhill.com

 

For Riot:

 

Phil McPherson

303-794-2000 ext. 110

IR@Riot.Inc

 

Media Contacts:

 

For Bitfarms:

 

U.S.: Joele Frank, Wilkinson Brimmer Katcher

Dan Katcher or Joseph Sala

+1 212-355-4449

 

 

 

 

 

Québec: Tact

Louis-Martin Leclerc

+1 418-693-2425

lmleclerc@tactconseil.ca

 

For Riot:

 

Longacre Square Partners

Joe Germani / Dan Zacchei

jgermani@longacresquare.com / dzacchei@longacresquare.com