展品10.1
執行版本
債務償還協議
本債務償還協議（以下簡稱“協議”）於2024年9月27日由Delaware corp.（以下簡稱“生效日期。”）之間訂立公司”), 美國數據挖掘集團公司（簡稱美國比特幣公司），一家內華達州公司 以及作爲該公司直接全資擁有子公司 (“USDG”), 美國數據守護者有限責任公司，一家內華達州有限責任公司，以及USDG的直接全資擁有子公司（以下簡稱“借款人”），本質是其他擔保方公司方”), and Anchorage Lending CA, LLC (the “出借人”).
鑑於, the Company Parties and the Lender are parties to a 貸款協議, 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） 免責和同意書，日期爲2023年5月25日 （iii） 同意和豁免書，日期爲2023年10月10日 （iv） 同意和豁免書, 日期爲2023年11月2日 (v)該 同意書和豁免, 日期爲2023年12月31日， 和(vi)該 同意書和豁免, 日期爲202年1月23日4,本招股說明書的“貸款協議網上定義的大寫字母表示未在借款協議中另有規定的術語具有所指定的含義;
鑑於出借人已向借款人發放了某些貸款，並根據貸款協議中包含的條款和條件執行（" 在本協議簽訂之日，貸款的總未償本金和應計利息爲$37,928,768.53（"貸款”);
鑑於當前貸款餘額37,928,768.53元淨有形資產完成條件
鑑於借款人和貸款人希望交換貸款的當前貸款餘額，以公司每股普通股面值0.01美元的股票進行交換（“普通股”或“公司股份），匯率爲每股16.395美元（“每股15.50美元在前整份股票的表的小部分先四捨五入，之後貸款應該立即全額支付，並且借款人在貸款協議下的所有其他債務應被全部支付，這些貸款應立即終止和取消，這筆債務應立即全額支付並完全清償。
servicenow, 因此雙方經慎重考慮，就有價值的對價，特此確認接收，雙方同意如下：
1. | 還款股份發行與本協議的簽署和交付同時，公司應向放款人發行2,313,435股普通股（“Repayment Shares”），用以全額償還當前貸款餘額。不遲於此後第二（第2）個交易日，公司應向放款人發行並交付一份證書或帳戶結單，作爲還款股份的證明。任何作爲還款股份證明的證書或證書或帳戶結單將受限於限制根據美國1933年證券法（根據修訂，即“證券法直至轉股股份（a）根據《證券法》項下的有效註冊聲明或《證券法》第144條規定被出售，“規則144”或（b）根據第144條規定，沒有成交量或方式限制，具備出售資格。 |
2. | 終止和釋放. |
(a) | 出借人在此承認並同意，在發行還款股份後，無需通過任何其他人採取進一步行動：(i)貸款將全額償還，借款人和其他貸款方根據貸款協議和其他貸款文件的所有其他債務將完全清償；(ii)爲確保債務的抵押權、抵押品、留置權、抵押、負擔和其他擔保措施將自動解除和清償；(iii)支持貸款協議的所有擔保將自動解除和清償；(iv)公司各方及其各自子公司和關聯公司根據貸款協議的所有責任將自動解除和清償；(v)借款協議和其他貸款文件將終止、取消並且不再生效。 |
(b) | 考慮到履行了全部債務的償還，出借人在此同意及時交付，僅由公司承擔成本和費用，給借款人(i)《統一商法典》解除和/或終止文件，形式應合適以記錄和終止出借人對抵押品的留置權和抵押權；(ii)關於公司方交付給出借人的每份無形證券控制協議的控制終止協議。出借人進一步同意，方式爲，僅由公司承擔成本和費用，從時間到時間，向借款人提供、交付或簽署並交付全部進一步的解除文件、終止聲明、證書、文件和文件，每一份均應合乎借款人合理滿意的形式和內容，並採取任何其他行動，如借款人合理請求或表明償還貸款、終止貸款協議和其他貸款文件，以及解除抵押權。 |
(c) | 貸方特此授權借方或代表借方的任何其他方準備並提交終止聲明和其他文件和文件，證明貸款的償還，貸款協議和其他貸款文件的終止，以及抵押品的釋放； 前提是所有此類文件和文件均應在提交任何此類文件之前提供給貸方進行審查。 |
3. | 貸方的陳述和保證貸方向公司方陳述和保證 |
(a) | 組織、授權和強制執行貸方是一家有限責任公司，依法成立，在其成立管轄權的法律下有效存在並且名列良好。貸方有充分的權力和權限進入本協議並完成本協議所 contemplent 的交易。貸方通過合法行動已經得到授權簽署和交付本協議，並完成其所 contemplent 的交易。本協議已由貸方簽署並且當被簽署並交付 |
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公司聚會，將構成借方的有效和具有約束力的義務，根據其條款對借方可執行，除非破產、無力償還、重組、接管、保護令、監護令、安排、停贖暫停或其他影響或涉及債權人權利的法律效力可能受限制，或特定履行、禁令救濟或其他衡平原則的可用性規則，無論是在衡平程序中還是在法律程序中考慮（"可強制執行例外情況”).
(b) | 政府同意與批准除非在此明確規定，貸方對本協議的簽訂、交付和履行不需要任何政府機關的同意、批准、授權或其他命令，也不需要任何政府機關的採取行動、提交、通知 |
(c) | 證券法陳述貸方是符合《證券法》下頒佈的501號規則所定義的合格投資者，並且知曉贖回股份的出售是依賴於《證券法》下的私人配售豁免進行的。貸方未經公司以外的任何人的邀請購買了贖回股份。貸方購買贖回股份是爲了自己的帳戶（而不是他人的帳戶），而不是帶有違反任何聯邦或州證券法或「藍天」法的情況，或者有任何分發或出售贖回股份違反《證券法》的現在意圖。貸方在金融和業務事務方面擁有足夠的知識和經驗，能夠評估投資贖回股份的優點和風險，並能夠承擔這種投資的經濟風險。貸方已有足夠的機會進行並已進行了相應的調查，並已收到和評估了認爲有必要的文件和信息，使其能夠就簽訂、交付和履行本協議做出知情和明智的決定。貸方明白贖回股份未在《證券法》下登記，根據聯邦證券法定是「受限證券」。 |
(d) | 無經紀人出借人在本協議涉及的交易中未保留、利用，或由任何經紀人、放置代理人、財務顧問或中介代表，或以其他方式成爲其義務所代表。 |
4. | 公司的陳述和擔保各公司方特此向出借人保證和聲明： |
(a) | 組織、授權和強制執行上述公司方是根據其成立所在地法律註冊的，合法存在並且合法經營的，具有擁有和使用其財產和資產以及開展當前業務所需的權力和授權。上述公司方完全有權進入本協議並完成本協議下考慮的交易。上述公司方簽署並交付本協議並完成本協議所涉及的交易。 |
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經過每個該公司方面的所有必要行動，已獲得適當授權。本協議已由該公司方面適當執行，並在貸款人執行和交付時，將對該公司方面構成有效且具約束力的義務，根據協議條款執行對該公司方面是可以強制執行的，但對執行力有可能受到執行力例外條款的限制。本公司及其重要附屬公司（以下定義）已正式註冊進行業務，並在其進行業務或擁有資產的性質所需的每個司法管轄區中都享有良好聲譽，除非未正式註冊或保持良好聲譽會造成或合理預期導致：（i）對交易文件（以下定義）的合法性、有效性或可強制執行性造成重大不利影響；（ii）對作為整體的公司及其重要附屬公司的營運、資產、業務、前景或狀況（財務或其他）造成重大不利影響；（iii）對公司履行任何交易文件下其在任何重大方面的義務的能力造成重大不利影響（以上任何一款，為“其他”），並且沒有在此類司法管轄區中提出任何訴訟，撤銷、限制或削減或尋求撤銷、限制或削減此等權力及資格的訴訟。重大不利影響交易文件意味著本協議和關於本協議的登記聲明或其他相關資料，並在每一個案例中，指導和進行本次交易所需的所有展覽和附表以及此等文件和協議。材料子公司指自決定日期起，在最近一個財政年度結束時，任何附屬公司，連同其子公司，擁有本公司綜合資產的超過20％的持有方，以及所有不是重要附屬公司而可集體構成一個重要附屬公司的附屬公司集團。
(b) | 沒有衝突。本協議由該公司方執行、交付和履行，以及由該公司方完成所預料的交易，不會違反或違反該公司方的公司組織文件的章程、組織部分或其他組織文件，也不會造成(ii)違反或對該公司方構成 違約（或一旦通知或時間屆滿或二者兼有即成為違約事件）或讓其他人有權終止、修改、加速或取消（無論有無通知、屆滿或兩者兼有）的任何協議、信貸機構、債務或其他工具或其他諒解，該公司方是該協議的一方，或該公司方的任何財產或資產所綁定或受影響，或(iii)違反任何法律、規則、法規、法令、判決、禁制令、判決或其他法庭或政府當局所受的任何限制，或該公司 方所受的任何財產或資產所受限制或受影響，除非在(ii)和(iii)各款的情況下，除非能夠單獨或合計地對該公司及其子公司合併對其整體財務或其他條件、收益、業務或業務前景、財產、業務或業務業務展望造成重大不利影響，操作或營運結果。 |
(c) | 政府同意與批准。假設放款人在所述陳述的準確性 第3(c)部分 交付和履行本 |
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除了 (i) 適用證券法要求的任何申報、(ii) 普通股上市規則所要求的任何申報，以及 (iii) 本協議要求的任何申報（包括根據以下規定提交註冊聲明）以外，該公司方的協議現在和將來都不要求任何政府機構同意、批准、授權或其他命令 第 5 節 在這裏）。
(d) | 有效發行。還款份額已獲得正式授權，當根據本協議條款發行以換取當前貸款餘額時，將有效發行、全額支付、不可評估且不具有先發制人或類似權利。 |
(e) | 清單和維護要求。普通股根據經修訂的1934年《證券交易法》第12（b）條註冊（”《交易法》”），而且公司沒有采取任何旨在終止普通股根據《交易法》註冊的行動，也沒有收到任何關於美國證券交易委員會（”秒”）正在考慮終止此類登記。公司在所有重大方面都遵守了納斯達克全球精選市場普通股繼續交易的上市和維護要求（”納斯達”）。在要求的範圍內，普通股將根據其上市標準獲准在納斯達克上市。 |
(f) | 美國證券交易委員會報告；財務報表。自2023年11月9日以來，公司已根據《證券法》和《交易法》（包括其中第13（a）或15（d）條，提交了公司根據《證券法》和《交易法》要求提交的所有報告、附表、表格、報表和其他文件（以及其中以引用方式納入的證物和文件，在此統稱爲”美國證券交易委員會報告”）及時。截至各自的日期，美國證券交易委員會報告在所有重要方面都遵守了《證券法》和《交易法》（如適用）的要求，而且美國證券交易委員會報告在提交時均未包含任何不真實的重大事實陳述，也沒有根據其發表的情況遺漏說明其中必須陳述的或在其中作出陳述所必需的重大事實，沒有誤導性。公司從來都不是受《證券法》第144（i）條約束的發行人。美國證券交易委員會報告中包含的公司財務報表在所有重大方面均符合適用的會計要求以及在提交時有效的美國證券交易委員會相關規章制度。此類財務報表是根據所涉期間一貫適用的美國公認會計原則編制的 (”GAAP”），除非此類財務報表或其附註中另有規定，否則未經審計的財務報表不得包含公認會計原則所要求的所有腳註，並且在所有重大方面公允列報公司及其合併子公司截至發佈日期的財務狀況以及截至該日止期間的經營業績和現金流量，但未經審計的報表須接受正常的年終審計調整。 |
(g) | 一般招標；不整合。除貸款人外，公司或公司授權代表其行事的任何其他個人或實體均沒有 |
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公司未直接或間接出售、要約出售、招標購買或以其他方式就其知識範圍內的與根據本協議發行的償還股份合併的任何證券（根據證券法規D項規定的含義內的普遍招攬或廣告行爲）。
(h) | 重大變化; 未披露的事件，負債或發展自包含在SEC報告中的最新資產負債表日期以來，除非在SEC報告中披露，（i）沒有發生過任何可能對公司產生重大不利影響或可以合理預期會導致重大不利影響的事件、情況或發展，（ii）公司未承擔除以下情況外的任何負債（或有的或其他），即（A）按照過去慣例與過往經營活動一致發生的應支付賬款和應計費用，（B）不需要按照GAAP反映在公司財務報表中或在向SEC提交的申報文件中披露的負債和（C）爲融資設備購買而發生的負債，（iii）公司未改變其會計原則，（iv）公司未宣佈或支付任何現金股息或物業分配給其股東或購買、贖回或達成任何購買或贖回任何資本股份的協議，並且（v）公司未向任何主管、董事或關聯方發行任何股權，除依據現有公司股票期權或激勵計劃。公司沒有在SEC面前提出任何信息保密請求。除本協議中規定的證券發行或SEC報告中披露外，對於公司或其子公司或其各自的業務、前景、財產、經營、資產或財務狀況，該公司根據適用證券法在作出此陳述時需要披露的任何事件、負債、事實、情況、發生或發展，無論是否已在至少在作出此陳述的日期前的1個交易日公開披露。 |
(i) | 子公司公司的主要子公司在SEC報告中有明確說明，公司直接或間接擁有每個主要子公司的全部股本或其他股權，並且每個主要子公司已發行和流通的股份均爲有效發行，已全額支付，不可評估，沒有優先購買或類似權利訂購或購買證券。 |
(j) | 訴訟除SEC報告中所述外，公司、其子公司或其各自財產目前沒有任何訴訟、訴訟、調查、違規通知、進行中或可能影響公司、其子公司或其各自財產的威脅。任何法院、仲裁員、政府或行政機構或監管機構（聯邦、州、縣、地方或外國）（統稱爲「訴訟」）沒有針對或影響，而公司知情，任何訴訟正在進行或可能進行。行動除SEC報告中所述外，公司或其任何子公司沒有任何行動，既挑戰交易文件或普通股的合法性、有效性或可執行性，也可能在做出不利決定的情況下產生或可以合理預期產生重大不利影響。 |
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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 |
10
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 |
11
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.
A-1
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: | |
A-2
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. |
A-3
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]
A-4
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: | | ||||
A-5
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 |
B-1
| ● | 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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