展品10.1
执行版本
债务偿还协议
本债务偿还协议（以下简称“协议”）于2024年9月27日由Delaware corp.（以下简称“生效日期。”）之间订立公司”), 美国数据挖掘集团公司（简称美国比特币公司），一家内华达州公司 以及作为该公司直接全资拥有子公司 (“USDG”), 美国数据守护者有限责任公司，一家内华达州有限责任公司，以及USDG的直接全资拥有子公司（以下简称“借款人”），本质是其他担保方公司方”), and Anchorage Lending CA, LLC (the “出借人”).
鉴于, the Company Parties and the Lender are parties to a 贷款协议, dated as of February 3, 2023 (as amended by (i) the First Amendment to the Loan Agreement, 截至2023年4月24日 （ii） 免责和同意书，日期为2023年5月25日 （iii） 同意和豁免书，日期为2023年10月10日 （iv） 同意和豁免书, 日期为2023年11月2日 (v)该 同意书和豁免, 日期为2023年12月31日， 和(vi)该 同意书和豁免, 日期为202年1月23日4,本招股说明书的“贷款协议网上定义的大写字母表示未在借款协议中另有规定的术语具有所指定的含义;
鉴于出借人已向借款人发放了某些贷款，并根据贷款协议中包含的条款和条件执行（" 在本协议签订之日，贷款的总未偿本金和应计利息为$37,928,768.53（"贷款”);
鉴于当前贷款余额37,928,768.53元净有形资产完成条件
鉴于借款人和贷款人希望交换贷款的当前贷款余额，以公司每股普通股面值0.01美元的股票进行交换（“普通股”或“公司股份），汇率为每股16.395美元（“每股15.50美元在前整份股票的表的小部分先四舍五入，之后贷款应该立即全额支付，并且借款人在贷款协议下的所有其他债务应被全部支付，这些贷款应立即终止和取消，这笔债务应立即全额支付并完全清偿。
servicenow, 因此双方经慎重考虑，就有价值的对价，特此确认接收，双方同意如下：
1. | 还款股份发行与本协议的签署和交付同时，公司应向放款人发行2,313,435股普通股（“Repayment Shares”），用以全额偿还当前贷款余额。不迟于此后第二（第2）个交易日，公司应向放款人发行并交付一份证书或账户结单，作为还款股份的证明。任何作为还款股份证明的证书或证书或账户结单将受限于限制根据美国1933年证券法（根据修订，即“证券法直至转股股份（a）根据《证券法》项下的有效注册声明或《证券法》第144条规定被出售，“规则144”或（b）根据第144条规定，没有成交量或方式限制，具备出售资格。 |
2. | 终止和释放. |
(a) | 出借人在此承认并同意，在发行还款股份后，无需通过任何其他人采取进一步行动：(i)贷款将全额偿还，借款人和其他贷款方根据贷款协议和其他贷款文件的所有其他债务将完全清偿；(ii)为确保债务的抵押权、抵押品、留置权、抵押、负担和其他担保措施将自动解除和清偿；(iii)支持贷款协议的所有担保将自动解除和清偿；(iv)公司各方及其各自子公司和关联公司根据贷款协议的所有责任将自动解除和清偿；(v)借款协议和其他贷款文件将终止、取消并且不再生效。 |
(b) | 考虑到履行了全部债务的偿还，出借人在此同意及时交付，仅由公司承担成本和费用，给借款人(i)《统一商法典》解除和/或终止文件，形式应合适以记录和终止出借人对抵押品的留置权和抵押权；(ii)关于公司方交付给出借人的每份无形证券控制协议的控制终止协议。出借人进一步同意，方式为，仅由公司承担成本和费用，从时间到时间，向借款人提供、交付或签署并交付全部进一步的解除文件、终止声明、证书、文件和文件，每一份均应合乎借款人合理满意的形式和内容，并采取任何其他行动，如借款人合理请求或表明偿还贷款、终止贷款协议和其他贷款文件，以及解除抵押权。 |
(c) | 贷方特此授权借方或代表借方的任何其他方准备并提交终止声明和其他文件和文件，证明贷款的偿还，贷款协议和其他贷款文件的终止，以及抵押品的释放； 前提是所有此类文件和文件均应在提交任何此类文件之前提供给贷方进行审查。 |
3. | 贷方的陈述和保证贷方向公司方陈述和保证 |
(a) | 组织、授权和强制执行贷方是一家有限责任公司，依法成立，在其成立管辖权的法律下有效存在并且名列良好。贷方有充分的权力和权限进入本协议并完成本协议所 contemplent 的交易。贷方通过合法行动已经得到授权签署和交付本协议，并完成其所 contemplent 的交易。本协议已由贷方签署并且当被签署并交付 |
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公司聚会，将构成借方的有效和具有约束力的义务，根据其条款对借方可执行，除非破产、无力偿还、重组、接管、保护令、监护令、安排、停赎暂停或其他影响或涉及债权人权利的法律效力可能受限制，或特定履行、禁令救济或其他衡平原则的可用性规则，无论是在衡平程序中还是在法律程序中考虑（"可强制执行例外情况”).
(b) | 政府同意与批准除非在此明确规定，贷方对本协议的签订、交付和履行不需要任何政府机关的同意、批准、授权或其他命令，也不需要任何政府机关的采取行动、提交、通知 |
(c) | 证券法陈述贷方是符合《证券法》下颁布的501号规则所定义的合格投资者，并且知晓赎回股份的出售是依赖于《证券法》下的私人配售豁免进行的。贷方未经公司以外的任何人的邀请购买了赎回股份。贷方购买赎回股份是为了自己的账户（而不是他人的账户），而不是带有违反任何联邦或州证券法或“蓝天”法的情况，或者有任何分发或出售赎回股份违反《证券法》的现在意图。贷方在金融和业务事务方面拥有足够的知识和经验，能够评估投资赎回股份的优点和风险，并能够承担这种投资的经济风险。贷方已有足够的机会进行并已进行了相应的调查，并已收到和评估了认为有必要的文件和信息，使其能够就签订、交付和履行本协议做出知情和明智的决定。贷方明白赎回股份未在《证券法》下登记，根据联邦证券法定是“受限证券”。 |
(d) | 无经纪人出借人在本协议涉及的交易中未保留、利用，或由任何经纪人、放置代理人、财务顾问或中介代表，或以其他方式成为其义务所代表。 |
4. | 公司的陈述和担保各公司方特此向出借人保证和声明： |
(a) | 组织、授权和强制执行上述公司方是根据其成立所在地法律注册的，合法存在并且合法经营的，具有拥有和使用其财产和资产以及开展当前业务所需的权力和授权。上述公司方完全有权进入本协议并完成本协议下考虑的交易。上述公司方签署并交付本协议并完成本协议所涉及的交易。 |
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经过每个该公司方面的所有必要行动，已获得适当授权。本协议已由该公司方面适当执行，并在贷款人执行和交付时，将对该公司方面构成有效且具约束力的义务，根据协议条款执行对该公司方面是可以强制执行的，但对执行力有可能受到执行力例外条款的限制。本公司及其重要附属公司（以下定义）已正式注册进行业务，并在其进行业务或拥有资产的性质所需的每个司法管辖区中都享有良好声誉，除非未正式注册或保持良好声誉会造成或合理预期导致：（i）对交易文件（以下定义）的合法性、有效性或可强制执行性造成重大不利影响；（ii）对作为整体的公司及其重要附属公司的营运、资产、业务、前景或状况（财务或其他）造成重大不利影响；（iii）对公司履行任何交易文件下其在任何重大方面的义务的能力造成重大不利影响（以上任何一款，为“其他”），并且没有在此类司法管辖区中提出任何诉讼，撤销、限制或削减或寻求撤销、限制或削减此等权力及资格的诉讼。重大不利影响交易文件意味著本协议和关于本协议的登记声明或其他相关资料，并在每一个案例中，指导和进行本次交易所需的所有展览和附表以及此等文件和协议。材料子公司指自决定日期起，在最近一个财政年度结束时，任何附属公司，连同其子公司，拥有本公司综合资产的超过20％的持有方，以及所有不是重要附属公司而可集体构成一个重要附属公司的附属公司集团。
(b) | 没有冲突。本协议由该公司方执行、交付和履行，以及由该公司方完成所预料的交易，不会违反或违反该公司方的公司组织文件的章程、组织部分或其他组织文件，也不会造成(ii)违反或对该公司方构成 违约（或一旦通知或时间届满或二者兼有即成为违约事件）或让其他人有权终止、修改、加速或取消（无论有无通知、届满或两者兼有）的任何协议、信贷机构、债务或其他工具或其他谅解，该公司方是该协议的一方，或该公司方的任何财产或资产所绑定或受影响，或(iii)违反任何法律、规则、法规、法令、判决、禁制令、判决或其他法庭或政府当局所受的任何限制，或该公司 方所受的任何财产或资产所受限制或受影响，除非在(ii)和(iii)各款的情况下，除非能够单独或合计地对该公司及其子公司合并对其整体财务或其他条件、收益、业务或业务前景、财产、业务或业务业务展望造成重大不利影响，操作或营运结果。 |
(c) | 政府同意与批准。假设放款人在所述陈述的准确性 第3(c)部分 交付和履行本 |
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除了 (i) 适用证券法要求的任何申报、(ii) 普通股上市规则所要求的任何申报，以及 (iii) 本协议要求的任何申报（包括根据以下规定提交注册声明）以外，该公司方的协议现在和将来都不要求任何政府机构同意、批准、授权或其他命令 第 5 节 在这里）。
(d) | 有效发行。还款份额已获得正式授权，当根据本协议条款发行以换取当前贷款余额时，将有效发行、全额支付、不可评估且不具有先发制人或类似权利。 |
(e) | 清单和维护要求。普通股根据经修订的1934年《证券交易法》第12（b）条注册（”《交易法》”），而且公司没有采取任何旨在终止普通股根据《交易法》注册的行动，也没有收到任何关于美国证券交易委员会（”秒”）正在考虑终止此类登记。公司在所有重大方面都遵守了纳斯达克全球精选市场普通股继续交易的上市和维护要求（”纳斯达”）。在要求的范围内，普通股将根据其上市标准获准在纳斯达克上市。 |
(f) | 美国证券交易委员会报告；财务报表。自2023年11月9日以来，公司已根据《证券法》和《交易法》（包括其中第13（a）或15（d）条，提交了公司根据《证券法》和《交易法》要求提交的所有报告、附表、表格、报表和其他文件（以及其中以引用方式纳入的证物和文件，在此统称为”美国证券交易委员会报告”）及时。截至各自的日期，美国证券交易委员会报告在所有重要方面都遵守了《证券法》和《交易法》（如适用）的要求，而且美国证券交易委员会报告在提交时均未包含任何不真实的重大事实陈述，也没有根据其发表的情况遗漏说明其中必须陈述的或在其中作出陈述所必需的重大事实，没有误导性。公司从来都不是受《证券法》第144（i）条约束的发行人。美国证券交易委员会报告中包含的公司财务报表在所有重大方面均符合适用的会计要求以及在提交时有效的美国证券交易委员会相关规章制度。此类财务报表是根据所涉期间一贯适用的美国公认会计原则编制的 (”GAAP”），除非此类财务报表或其附注中另有规定，否则未经审计的财务报表不得包含公认会计原则所要求的所有脚注，并且在所有重大方面公允列报公司及其合并子公司截至发布日期的财务状况以及截至该日止期间的经营业绩和现金流量，但未经审计的报表须接受正常的年终审计调整。 |
(g) | 一般招标；不整合。除贷款人外，公司或公司授权代表其行事的任何其他个人或实体均没有 |
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公司未直接或间接出售、要约出售、招标购买或以其他方式就其知识范围内的与根据本协议发行的偿还股份合并的任何证券（根据证券法规D项规定的含义内的普遍招揽或广告行为）。
(h) | 重大变化; 未披露的事件，负债或发展自包含在SEC报告中的最新资产负债表日期以来，除非在SEC报告中披露，（i）没有发生过任何可能对公司产生重大不利影响或可以合理预期会导致重大不利影响的事件、情况或发展，（ii）公司未承担除以下情况外的任何负债（或有的或其他），即（A）按照过去惯例与过往经营活动一致发生的应支付账款和应计费用，（B）不需要按照GAAP反映在公司财务报表中或在向SEC提交的申报文件中披露的负债和（C）为融资设备购买而发生的负债，（iii）公司未改变其会计原则，（iv）公司未宣布或支付任何现金股息或物业分配给其股东或购买、赎回或达成任何购买或赎回任何资本股份的协议，并且（v）公司未向任何主管、董事或关联方发行任何股权，除依据现有公司股票期权或激励计划。公司没有在SEC面前提出任何信息保密请求。除本协议中规定的证券发行或SEC报告中披露外，对于公司或其子公司或其各自的业务、前景、财产、经营、资产或财务状况，该公司根据适用证券法在作出此陈述时需要披露的任何事件、负债、事实、情况、发生或发展，无论是否已在至少在作出此陈述的日期前的1个交易日公开披露。 |
(i) | 子公司公司的主要子公司在SEC报告中有明确说明，公司直接或间接拥有每个主要子公司的全部股本或其他股权，并且每个主要子公司已发行和流通的股份均为有效发行，已全额支付，不可评估，没有优先购买或类似权利订购或购买证券。 |
(j) | 诉讼除SEC报告中所述外，公司、其子公司或其各自财产目前没有任何诉讼、诉讼、调查、违规通知、进行中或可能影响公司、其子公司或其各自财产的威胁。任何法院、仲裁员、政府或行政机构或监管机构（联邦、州、县、地方或外国）（统称为“诉讼”）没有针对或影响，而公司知情，任何诉讼正在进行或可能进行。行动除SEC报告中所述外，公司或其任何子公司没有任何行动，既挑战交易文件或普通股的合法性、有效性或可执行性，也可能在做出不利决定的情况下产生或可以合理预期产生重大不利影响。 |
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nor, to the knowledge of the Company, any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. To the knowledge of the Company, there has not been, and there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company (in his or her capacity as such). The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k) | Registration Rights. Except as disclosed in the SEC Reports (including with respect to the registration rights issued or to be issued to Coatue Tactical Solutions Lending Holdings AIV 3 LP), no Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary. |
(l) | Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration. Except as disclosed in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer. “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing). |
(m) | Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Stock in violation of Regulation M under the Exchange Act. |
(n) | No Brokers. Such Company Party has not retained, utilized or been represented by, or otherwise become obligated to, any broker, placement agent, financial advisor or finder in connection with the transactions contemplated by this Agreement. |
5. | Registration Rights. |
(a) | The Company agrees that it will: (i) file with the SEC, no later than December 6, 2024, a registration statement on Form S-3 (which shall be an automatic shelf registration statement that is effective automatically upon filing such registration statement with the |
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SEC if the Company satisfies the requirements of an automatic shelf registration statement under General Instruction I.D. of Form S-3 at the time of filing), or, if the Company is not then eligible to register the Repayment Shares for resale on Form S-3, on another appropriate form in accordance with the Securities Act, to enable the resale of the Repayment Shares by the Lender in an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Registration Statement”), (ii) if such Registration Statement is not immediately effective, use its reasonable best efforts to cause the Registration Statement to become effective as soon as practicable after the filing thereof, and (iii) file with the SEC such amendments and supplements to the Registration Statement in compliance with applicable laws, the prospectus used in connection therewith and any document incorporated by reference therein as may be necessary to keep such Registration Statement current, effective and free from any material misstatement or omission to state a material fact until the earlier of (A) the date as of which the Lender may sell all of the Repayment Shares without restriction or limitation as to volume or manner sale under Rule 144 and (B) such time as all Repayment Shares acquired by the Lender hereunder have been sold; provided, however, that the Company’s obligations to include the Repayment Shares in the Registration Statement are contingent upon the Lender furnishing a completed and executed selling shareholder questionnaire in the form set forth as Annex A attached hereto (the “Seller Questionnaire”) to the Company regarding the Lender and the securities of the Company held by the Lender to effect the registration of the Repayment Shares. For the avoidance of doubt, if the SEC does not declare the Registration Statement effective due to macroeconomic or industry-related factors, “reasonable best efforts” as used in this Section 5(a) with respect to the effectiveness of such Registration Statement shall not require the Company to take any actions inconsistent with other similarly situated issuers in its industry. The Registration Statement shall contain (except if otherwise required pursuant to written comments received from the SEC upon a review of such Registration Statement, other than as to the characterization of the Lender as an underwriter, which shall not occur unless such characterization is consistent with written information provided by the Lender in the Seller Questionnaire) a “Plan of Distribution” in substantially the form attached hereto as Annex B. Notwithstanding anything contained herein or in any of the other Transaction Documents to the contrary, the registration rights contained herein shall not permit Lender to require or demand, and the Company shall not be under any obligation to permit or facilitate in any way, an underwritten offering of the Repayment Shares or any other securities of the Company held by the Lender, whether pursuant to the Registration Statement or otherwise.
(b) | In the event (i) of any request by the SEC or any other federal, state or provincial governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to such Registration Statement or a related prospectus or for additional information; (ii) of the issuance by the SEC or any other federal, state or provincial governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Repayment Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) that the Company’s Board of Directors determines in good faith that it would be |
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materially detrimental to the Company to maintain a Registration Statement at such time because it would require the disclosure of material nonpublic information the disclosure of which at the time is not in the best interests of the Company; then the Company shall deliver a certificate in writing to the Lender (the “Suspension Notice”) to the effect of the foregoing (provided that the Company will not disclose the content of any material non-public information to the Lender in any Suspension Notice) and, upon receipt of such Suspension Notice, the Lender will refrain from selling any Repayment Shares pursuant to the Registration Statement (a “Suspension”) until the Lender’s receipt of copies of a supplemented or amended prospectus prepared and filed by the Company, such receipt shall be deemed effective hereunder if such supplemented or amended prospectus is made publicly available on the Company’s website or at www.sec.gov, or until it is advised in writing by the Company that the current prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such prospectus, such receipt shall be deemed effective hereunder if such additional or supplemental filings are made publicly available on the Company’s website or at www.sec.gov. The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Repayment Shares for sale in any jurisdiction and in the event of any Suspension, the Company will use its commercially reasonable efforts to cause the use of the prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice. The Company shall have the right to defer the filing of or suspend the use of the Registration Statement pursuant to (iv) above for a period of not more than sixty (60) days from the date the Company notifies the Lender of such deferral or suspension; provided that the Company shall not exercise such right more than once in any six (6) month period.
(c) | In connection with the Registration Statement, the Company shall (i) pay all customary costs and expenses in connection with such registration including all registration and filing fees, expenses of any audits incident to or required by any such registration, fees and expenses of complying with securities and “blue sky” laws, printing expenses and fees and expenses of the Company’s counsel and accountants and Financial Industry Regulatory Authority, Inc. filing fees (if any) (other than underwriting discounts and commissions and brokers’ commissions), (ii) notify the Lender promptly upon discovery that the Registration Statement or any supplement to any prospectus forming a part of the Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and any prospectus forming a part of the Registration Statement as may be necessary to comply with the provisions of the Securities Act in connection with resale of the Repayment Shares, and (iii) indemnify and hold harmless the Lender, each underwriter, broker or any other person acting on behalf of the Lender and each other person, if any, who controls any of the foregoing persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by law, from and against any and all losses to which any of the foregoing persons may become subject under the Securities Act or otherwise caused by, arising from or relating to any untrue statement or alleged untrue statement of a material |
9
fact, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, contained in any such Registration Statement or prospectus or any amendment thereof or supplement thereto relating to the Repayment Shares, except insofar as such losses are caused by or related to any such untrue statement or omission or alleged untrue statement or omission so made based upon information included in the Seller Questionnaire or otherwise furnished in writing to the Company by the Lender expressly for use therein.
6. | General Provisions. |
(a) | Purchase Price Adjustment. In the event that, on or prior to December 31, 2024, the Company (i) sells any shares of Common Stock, other than pursuant to an Excluded Issuance, at a price per share that is less than the Purchase Price or (ii) issues any debt or equity instrument of the Company or any of its subsidiaries or affiliates that is convertible into or exchangeable for shares of Common Stock, other than pursuant to an Excluded Issuance, at an initial conversion or exchange price, as applicable, that is less than the Purchase Price (“Better Offer”), then in each case, this Agreement shall be deemed to be amended to reflect a new Purchase Price that is the lowest Better Offer and the Company shall forthwith issue to the Lender additional shares of Common Stock without any cost, expense or liability to be incurred by the Lender and all at the expense of the Company to reflect a Purchase Price that is equal to the lowest Better Offer. For the elimination of doubt, no such amendment to the Purchase Price or issuance of additional shares of Common Stock shall be required as a result of an Excluded Issuance. As used herein, “Excluded Issuance” means: (i) any issuance and/or sale of Common Stock (or of any instrument convertible into or exchangeable or exercisable for shares of Common Stock) pursuant to any equity compensation plan of the Company or any of its subsidiaries or affiliates; (ii) the issuance and/or sale of shares of Common Stock pursuant to any warrant, or option outstanding as of the date hereof; (iii) the issuance and/or sale of Common Stock (or of any instrument convertible into or exchangeable or exercisable for shares of Common Stock) in connection with the acquisition by the Company or any of its subsidiaries or affiliates of the securities, business, technology, property or other assets of another person or entity (or pursuant to an employee benefit plan assumed by the Company in connection with such acquisition); (iv) the issuance and/or sale of Common Stock (or of any instrument convertible into or exchangeable or exercisable for shares of Common Stock) in connection with joint ventures, commercial relationships or other strategic transactions; (v) the issuance of any securities of the Company pro-rata to all of its then existing stockholders (whether pursuant to a dividend or otherwise); (vi) any issuance and/or sale of warrants, options or other debt or equity instruments of the Company, or any subsidiary or affiliate of the Company, with an exercise or conversion price below the Purchase Price if such warrant, option or other convertible security is issued in connection with (e.g., as a part of a unit offered in tandem) (A) the issuance and sale of shares of Common Stock by the Company at a price per share equal to or greater than the Purchase Price or (B) the issuance and sale of any debt or equity instrument convertible into or exchangeable or exercisable for shares of Common Stock at an initial conversion, exchange or exercise price per share equal to or greater than the Purchase Price; and (vii) the issuance |
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of Common Stock upon the conversion, exchange or exercise of any convertible debt or equity instruments referenced in clauses (i) through (vi) above in accordance with the terms thereof.
(b) | Indemnification. The Company will indemnify and hold the Lender and its directors, officers, shareholders, members, partners, employees and agents, each Person who controls the Lender (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a “Lender Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable and documented out-of-pocket attorney’s fees and costs of investigation that any such Lender Party may suffer or incur as a result of or relating to (i) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (ii) any action instituted against the Lender Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Lender Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such Lender Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Lender Party may have with any such stockholder or any violations by such Lender Party of state or federal securities laws or any conduct by such Lender Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against any Lender Party in respect of which indemnity may be sought pursuant to this Agreement, such Lender Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Lender Party. Any Lender Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Lender Party except to the extent that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Lender Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The indemnification required by this Section 6(a) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, in each case, within 5 business days of when the Company receives notice that such bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Lender Party against the Company or others and any liabilities the Company may be subject to pursuant to law. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY UNDER THIS SECTION 6 FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR LOST PROFITS OR DIMINUTION IN VALUE ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE |
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COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(c) | Governing Law, Waiver of Jury Trial. This Agreement shall be governed by and construed under the laws of the State of New York without regard to the choice of law principles thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New York located in The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or therewith or with any transaction contemplated hereby or thereby, and hereby irrevocably waives any objection that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. |
(d) | Notices. All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail; (c) one (1) business day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified at such party’s address as set forth on the signature page hereto, or as subsequently modified by written notice |
(e) | Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. |
(f) | Modification and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by the Lender and the Company Parties. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right. |
(g) | Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this |
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Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
(h) | Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements relating to the subject matter hereof existing between the parties hereto are expressly canceled. The Lender acknowledges and agrees that none of the Company Parties or any other Person has made or makes any express or implied representation or warranty, either written or oral, on behalf of the Company Parties (including without limitation any representation or warranty as to the accuracy or completeness of any information regarding the Company Parties furnished or made available to Lender) except for the representations and warranties expressly set forth in this Agreement. |
(i) | Headings. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. |
(j) | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one Agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement. |
(k) | Expenses. The Company shall pay, in cash, all of the Lender’s fees, costs and expenses, including of the Lender’s advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery, performance and enforcement of this Agreement. The Company shall pay all fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by the Purchaser), stamp taxes and other similar taxes and duties levied in connection with the delivery of any Stock to the Lender. Concurrently with the execution and delivery of this Agreement, the Company shall pay, in cash, to the Lender, an amount equal to $87,850 as reimbursement for Lender’s expenses incurred to date in connection with the negotiation, preparation, execution and delivery of this Agreement and legal fees outstanding under the Loan Agreement. |
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Debt Repayment Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
COMPANY PARTIES | ||
| | |
| HUT 8 CORP. | |
| | |
| | |
| By: | /s/ Victor Semah |
| Name: Victor Semah | |
| Title: Chief Legal Officer | |
| U.S. DATA MINING GROUP, INC. | |
| | |
| | |
| By: | /s/ Victor Semah |
| Name: Victor Semah | |
| Title: Chief Legal Officer | |
| US DATA GUARDIAN LLC | |
| | |
| | |
| By: | /s/ Victor Semah |
| Name: Victor Semah | |
| Title: Chief Legal Officer | |
| U.S. DATA TECHNOLOGIES GROUP LTD. | |
| | |
| | |
| By: | /s/ Victor Semah |
| Name: Victor Semah | |
| Title: Chief Legal Officer | |
| | |
| Address for notices (all Company Parties): | |
| [REDACTED] | |
[Signature Page to Debt Repayment Agreement]
| LENDER | |
| | |
| ANCHORAGE LENDING CA, LLC | |
| | |
| | |
| By: | /s/ Julie Veltman |
| Name: Julie Veltman | |
| Title: Head of Finance | |
| | |
| Address for notices (Lender): | |
| [REDACTED] | |
[Signature Page to Debt Repayment Agreement]
ANNEX A
HUT 8 CORP.
QUESTIONNAIRE FOR SELLING STOCKHOLDERS
IN CONNECTION WITH THE PREPARATION OF A REGISTRATION STATEMENT
RELATING TO REGISTRATION OF
COMMON STOCK HELD BY THE SELLING STOCKHOLDERS
Introductory Statement
Hut 8 Corp. (the “Company”) is planning to file a registration statement on Form S-3ASR or another appropriate form (the “Registration Statement”) with the Securities and Exchange Commission (“SEC”) covering shares of common stock held by or issuable to certain stockholders of the Company. The furnishing of accurate and complete responses to the questions posed in this questionnaire is an extremely important part of preparing information to be included in the Registration Statement. The inclusion of any inaccurate or incomplete disclosures in the Registration Statement can result in serious potential liabilities, both civil and criminal, to the Company and to the individuals who furnish the information. Therefore, you are asked to complete the questionnaire with as much care, diligence and thoroughness as possible. Please attach additional sheets if necessary to fully answer any questions.
Your careful completion of this questionnaire is necessary to assure that the information included in the Registration Statement is accurate and complete when such Registration Statement becomes effective. Therefore, please give a response to every question, indicating “None” or “Not Applicable” where appropriate. If the space provided for any answer is inadequate, continue your answer on a separate sheet of paper and attach it to the questionnaire.
Definition of Beneficial Ownership. In answering the questions concerning “beneficial ownership” of securities contained in this questionnaire, please note that under SEC Rule 13d-3, a “beneficial owner of a security” is “any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise, has or shares:
| (a) | Voting power which includes the power to vote, or to direct the voting of, such security; and/or |
| (b) | Investment power which includes the power to dispose, or to direct the disposition, of such security.” |
A person is deemed to be the beneficial owner of securities if he, she or it has the right to acquire beneficial ownership of such securities at any time within 60 days, including but not limited to any right to acquire: (i) through the exercise of any option, warrant or right; (ii) through the conversion of a security; (iii) pursuant to the power to revoke a trust, discretionary account or similar arrangement; or (iv) pursuant to the automatic termination of a trust, discretionary account or similar arrangement. Please note that securities may be beneficially owned by more than one person.
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Questions
1. | Please set forth your name, business address and citizenship: |
Full legal name of holder of shares: _______________________________
Business Address: _____________________________________________
City, State and Zip Code: _______________________________________
Citizenship: __________________________________________________
2. | Please indicate the number of shares of common stock of the Company of which you are presently the beneficial owner and the number of shares you request to have included in the Registration Statement. |
Number of Shares Owned: _________________
Number of Shares to Be Included in Registration Statement: ____________
3. | Specifically describe how many of the shares you reported in Question 2 are listed as beneficially owned because you have the right to acquire beneficial ownership of such shares (within 60 days) pursuant to an option, warrant, right, power of conversion or pursuant to the power to revoke a discretionary trust. |
4. | Of the shares of the Company’s common stock you reported in Question 2, please state the number of shares with respect to which you have: (a) sole voting power, (b) shared voting power, (c) sole investment power, or (d) shared investment power. With respect to shares for which you share voting and/or investment power, please explain how and with whom such power is shared. |
| | Number of |
| | Shares |
| | |
(a) | sole voting power: | |
(b) | shared voting power*: | |
(c) | sole investment power: | |
(d) | shared investment power*: | |
* Explanation: | |
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5. | List the number of other Company securities beneficially owned by you, if any, and state the nature of such ownership (e.g., direct or through ownership of an option or a warrant): |
6. | If the securities reported in Question 4 and/or 5 are not held by a natural person (e.g., if the holder is an entity such as a trust, corporation, partnership, etc.), please identify the natural person or persons who have voting or investment control over such securities: |
7. | Except as set forth below, neither you nor any person or entity listed in Question 4(d) above, nor any of yours or their respective affiliates1, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years. |
State any exceptions here:
8.FINRA Affiliations.
(a) | Are you a broker-dealer or a direct or indirect “affiliate” or “associate” of a member firm of the Financial Industry Regulatory Authority (FINRA)? |
Yes No
If your answer is yes, please respond to (i) and (ii) below:
| (i) | Please set forth below the names of all affiliated or associated FINRA member firms, the number of shares of equity securities or the face value of debt securities owned by you, the date such securities were acquired, the |
| 1 | An “affiliate” means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the person specified. Control means having the power to direct or cause the direction of the management or policies of an entity. An officer or director is generally presumed to control an entity. A holder of ten percent or more of the outstanding voting securities of an entity also is generally presumed to control such entity but in appropriate circumstances a holder of a smaller percentage may nonetheless be found to exercise control. |
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price paid for such securities and the nature of such affiliation or association:
(ii) | Please indicate whether these FINRA member firms undertake not to “participate” (as defined for purposes of Article III, Section 1 of the FINRA Rules of Fair Practice) in the secondary offering? |
( ) Such member firms undertake not to participate
( ) Such member firms may participate.
(b) | Please set forth below the number of shares of capital stock or other types of securities of any FINRA member (other than securities purchased in the open market) owned by you and the name of such FINRA member. |
Certification:
I understand that this information is furnished to the Company for use in connection with the preparation of the Registration Statement. I hereby consent to being named as a selling stockholder in the prospectus that forms a part of the Registration Statement, as amended or supplemented, and to have my shares of common stock included in the Registration Statement.
I hereby represent and warrant to the Company that I have answered this questionnaire to the best of my knowledge and belief and that I am furnishing this questionnaire to the Company for use in the Registration Statement and any prospectus or any amendment or supplement thereto, or any preliminary prospectus in connection with the preparation of the Registration Statement. I am aware that the Company, the SEC and recipients of the prospectus will be relying on the accuracy and completeness of the information provided herein and consent to the use of the information provided herein for the purposes stated above. I will promptly notify the Company of any changes in such information that may occur subsequent hereto.
[Signature page follows]
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I confirm that the foregoing statements are correct, to the best of my knowledge and belief.
Dated: | | , 2024 | | | |||
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SIGNATURE BLOCK FOR INDIVIDUALS | | SIGNATURE BLOCK FOR ENTITIES | |||||
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| | | |||||
(Signature) | | (Name of Entity) | |||||
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| | By: |
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(Printed Name) | | Printed Name: | | ||||
| | Title: | | ||||
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ANNEX B
PLAN OF DISTRIBUTION
The selling securityholders and any of their pledgees, donees, assignees, transferees and successors-in-interest may, from time to time, sell any or all of their shares of our common stock covered by this prospectus on Nasdaq or any other stock exchange, market or trading facility on which the shares are traded or in private transactions. These sales may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. To the extent any of the selling securityholders gift, pledge or otherwise transfer the securities offered hereby, such transferees may offer and sell the securities from time to time under this prospectus, provided that, if required under the Securities Act and the rules and regulations promulgated thereunder, this prospectus has been amended under rule 424(b)(3) or other applicable provision of the Securities Act, to include the name of such transferee in the list of selling securityholders under this prospectus. Subject to compliance with applicable law, the selling securityholders may use any one or more of the following methods when selling shares of our common stock:
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits the purchaser; |
| ● | block trades in which the broker-dealer will attempt to sell the shares of common stock as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; |
| ● | privately negotiated transactions; |
| ● | in “at the market” offerings, as defined in Rule 415 under the Securities Act, at negotiated prices, at prices prevailing at the time of sale or at prices related to such prevailing market prices, including sales made directly on a national securities exchange or sales made through a market maker other than on an exchange or other similar offerings through sales agents; |
| ● | through one or more underwritten offerings on a firm commitment or best efforts basis; |
| ● | settlement of short sales entered into after the date of this prospectus; |
| ● | in options transactions; |
| ● | through trading plans entered into by a selling securityholder pursuant to Rule 10b5-1 under the Exchange Act, that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of their securities on the basis of parameters described in such trading plans; |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| ● | a combination of any such methods of sale; or |
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| ● | any other method permitted pursuant to applicable law. |
The selling securityholders may also sell shares of our common stock under Rule 144 under the Securities Act, if available, or in other transactions exempt from registration, rather than under this prospectus. The selling securityholders have the sole and absolute discretion not to accept any purchase offer or make any sale of securities if they deem the purchase price to be unsatisfactory at any particular time.
A selling securityholder that is an entity may elect to make an in-kind distribution of common stock to its members, partners, stockholders or other equityholders pursuant to the registration statement of which this prospectus forms a part by delivering a prospectus. To the extent that such members, partners, stockholders or other equityholders are not affiliates of ours, such members, partners, stockholders or other equityholders would thereby receive freely tradable shares of common stock pursuant to a distribution pursuant to the registration statement of which this prospectus forms a part.
Broker-dealers engaged by the selling securityholders may arrange for other brokers-dealers to participate in sales. If the selling securityholders effect such transactions by selling securities to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling securityholders (or, if any broker-dealer acts as agent for the purchaser of shares of common stock, from the purchaser) in amounts to be negotiated. The selling securityholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved.
In connection with the sale of the common stock or interests therein, the selling securityholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling securityholders may also sell shares of the common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling securityholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling securityholders may from time to time pledge or grant a security interest in some or all of their shares of common stock to their broker-dealers under the margin provisions of customer agreements or to other parties to secure other obligations. If a selling stockholder defaults on a margin loan or other secured obligation, the broker-dealer or secured party may, from time to time, offer and sell the shares of common stock pledged or secured thereby pursuant to this prospectus.
The selling securityholders and any other persons participating in the sale or distribution of the shares of common stock will be subject to applicable provisions of the Securities Act, the Securities Exchange Act of 1934, and the rules and regulations thereunder, including, without limitation, Regulation M. These provisions may restrict certain activities of, and limit the timing of purchases
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and sales of any of the shares of common stock by, the selling securityholders or any other person, which limitations may affect the marketability of the shares of common stock.
The selling securityholders also may transfer the shares of our common stock in other circumstances, in which case the transferees, pledgees or other successors-in-interest will be the selling beneficial owners for purposes of this prospectus.
The selling securityholders and any broker-dealers or agents that are involved in selling the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. To our knowledge, no selling stockholder has entered into any agreement or understanding, directly or indirectly, with any person to distribute the shares of our common stock.
In order to comply with the securities laws of certain states, if applicable, the securities must be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states the securities may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
We are required to pay certain fees and expenses incident to the registration of shares of our common stock. We have agreed to indemnify the selling securityholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
To the extent required pursuant to the Securities Act and the rules and regulations promulgated thereunder, the number of shares of our common stock to be sold, the names of the selling securityholders, the respective purchase prices and public offering prices, the names of any agents, dealers or underwriters and any applicable commissions, discounts and other items constituting compensation, and any discount, commission or concession allowed or reallowed or paid to any broker-dealer with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
There can be no assurance that any selling securityholder will sell any or all of the securities registered pursuant to the registration statement that includes this prospectus.
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