Form 8-K
8-K — Big Digital Energy, Inc.
Accession: 0001213900-26-102866
Filed: 2026-09-24
Period: 2026-09-18
CIK: 0001218683
SIC: 6199 (FINANCE SERVICES)
Item: Entry into a Material Definitive Agreement
Item: Unregistered Sales of Equity Securities
Item: Financial Statements and Exhibits
Documents
8-K — ea0306466-8k_bigdigital.htm (Primary)
EX-10.1 — EXCHANGE AGREEMENT, DATED SEPTEMBER 18, 2026, BY AND BETWEEN BIG DIGITAL ENERGY, INC. AND ENDEAVOR BLOCKCHAIN, LLC (ea030646601ex10-1.htm)
EX-10.2 — REGISTRATION RIGHTS AGREEMENT, DATED SEPTEMBER 18, 2026, BY AND BETWEEN BIG DIGITAL ENERGY, INC. AND ENDEAVOR BLOCKCHAIN, LLC (ea030646601ex10-2.htm)
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8-K — CURRENT REPORT
8-K (Primary)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported):
September 18, 2026
BIG DIGITAL ENERGY, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware
001-40849
88-0445167
(State or Other Jurisdiction
of Incorporation)
(Commission File No.)
(I.R.S. Employer
Identification No.)
950 Railroad Avenue,
Midland, Pennsylvania 15059
(Address of Principal Executive Offices) (Zip Code)
(412) 515-0896
(Registrant’s Telephone Number, Including
Area Code)
(Former Name or Former Address, if Changed Since
Last Report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which
registered
Common Stock, par value $0.001 per share
BGDE
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
Exchange Agreement
On September 18, 2026, Big Digital Energy, Inc. (the “Company”)
entered into an Exchange Agreement with Endeavor Blockchain, LLC (“Endeavor”), pursuant to which Endeavor agreed to exchange
(the “Exchange”) all then outstanding amounts under that certain Revolving Line of Credit Promissory Note, dated May 28, 2026,
consisting of (i) $2,500,000.00 unpaid principal and (ii) $68,815.71 accrued and unpaid interest (collectively, the “Exchange Debt”),
for 442,899 shares of the Company’s common stock, par value $0.001 per share, issued by the Company to Endeavor (the “Shares”).
Endeavor is wholly owned by the Company’s Executive Chair Joshua A. Kilgore. The Shares were priced at their market value of $5.80
per share, which is the consolidated closing bid price per share immediately preceding the execution of the Exchange Agreement, in accordance
with Nasdaq Listing Rule 5005(a)(23).
The Exchange closed on September 21, 2026. Upon the Company’s
delivery of the Shares, Endeavor relinquished all rights, title, and interest in the Exchange Debt.
The Exchange Agreement contains customary representations, warranties,
covenants and agreements by the parties, including restrictions on transfer and legend requirements reflecting the unregistered status
of the Shares. The representations, warranties, and covenants contained in the Exchange Agreement were made only for purposes of such
agreement and are made as of specific dates; are solely for the benefit of the parties (except as specifically set forth therein); may
be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the Exchange Agreement,
including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties, instead
of establishing matters as facts; and may be subject to standards of materiality and knowledge applicable to the contracting parties that
differ from those applicable to the investors generally. Investors should not rely on the representations, warranties, and covenants or
any description thereof as characterizations of the actual state of facts or condition of the Company.
The Shares have not been registered under the Securities Act of 1933,
as amended (the “Securities Act”) and may not be offered or sold in the United States absent registration or an applicable
exemption therefrom. To consummate the Exchange, the Company relied on the registration exemption provided by Section 3(a)(9) of the Securities
Act, which exempts security exchanges by an issuer with its existing security holders from SEC registration, provided no commission or
remuneration is paid for solicitation.
The foregoing description of the Exchange Agreement does not purport
to be complete and is qualified in its entirety by reference to the full text of the Exchange Agreement, which is filed as Exhibit 10.1
to this Current Report on Form 8-K.
Registration Rights Agreement
On September 18, 2026, as required by the Exchange Agreement, the Company
and Endeavor entered into a Registration Rights Agreement (the “Registration Rights Agreement”). Under the Registration Rights
Agreement, the Company is required, among other things, to file an initial resale registration statement covering the Shares by no later
than October 9, 2026, and to use commercially reasonable efforts to cause such registration statement to become effective by no later
than November 17, 2026. The Registration Rights Agreement contains terms and conditions customary for a transaction of this type, including
indemnification and contribution provisions.
The foregoing description of the Registration Rights Agreement does
not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which
is filed as Exhibit 10.2 to this Current Report on Form 8-K.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form
8-K is hereby incorporated into this Item 3.02 by reference.
Item 9.01. Financial Statements and Exhibits.
Exhibit No.
Description
10.1
Exchange Agreement, dated September 18, 2026, by and between Big Digital Energy, Inc. and Endeavor Blockchain, LLC
10.2
Registration Rights Agreement, dated September 18, 2026, by and between Big Digital Energy, Inc. and Endeavor Blockchain, LLC
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
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SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated: September 24, 2026
BIG DIGITAL ENERGY, INC.
By:
/s/ Kaliste Saloom
Name:
Kaliste Saloom
Title:
General Counsel
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EX-10.1 — EXCHANGE AGREEMENT, DATED SEPTEMBER 18, 2026, BY AND BETWEEN BIG DIGITAL ENERGY, INC. AND ENDEAVOR BLOCKCHAIN, LLC
EX-10.1
Filename: ea030646601ex10-1.htm · Sequence: 2
Exhibit 10.1
EXCHANGE AGREEMENT
This Exchange
Agreement (this “Agreement”), dated as of September 18, 2026, is entered into by and between Big Digital
Energy, Inc., a Delaware corporation (the “Company”), and Endeavor Blockchain, LLC, an Arkansas limited liability company
(the “Holder,” and together with the Company, the “Parties”).
WHEREAS, the Company
previously issued that certain Revolving Line of Credit Promissory Note, dated May 28, 2026, in favor of the Holder, which has an outstanding
balance consisting of (i) $2,500,000.00 unpaid principal and (ii) $68,815.71 accrued and unpaid interest as of the date hereof (the “Note”);
WHEREAS, subject to
the terms and conditions set forth in this Agreement, the Parties wish to exchange (the “Exchange”) all of the outstanding
principal and accrued interest under the Note (collectively, the “Exchange Debt”) for 442,899 shares of common stock,
par value $0.001 per share (“Common Stock”), to be issued by the Company to the Holder (the “Shares”);
and
WHEREAS, the Exchange
shall be made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended
(the “Securities Act”).
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Parties agree as follows:
Article I.
definitions
1.1. Definitions.
As used in this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Action”
has the meaning set forth in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Agreement”
has the meaning set forth in the preamble.
“BHCA”
has the meaning set forth in Section 3.1(jj).
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to
remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to
remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar
orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic
funds transfer systems (including for wire transfers) of commercial banks in New York City are generally open for use by customers on
such day.
“Closing”
has the meaning set forth in Section 2.1(a).
“Closing Date”
has the meaning set forth in Section 2.1(b).
“Common Stock”
has the meaning set forth in the recitals.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including
any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable
for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company”
has the meaning set forth in the preamble.
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently herewith.
“Effective Date”
means, with respect to any Shares, the earliest of the date that (a) the initial Registration Statement registering for resale such Shares
has been declared effective by the SEC, (b) such Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without
the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume or
manner-of-sale restrictions, (c) following the one year anniversary of the Closing Date provided that a holder of the Shares is not an
Affiliate of the Company, or (d) such Shares may be sold pursuant to an exemption from registration under Section 4(a)(1) of the Securities
Act without volume or manner-of-sale restrictions and outside counsel to the Company has delivered to such holders a standing written
unqualified opinion that resales may then be made by such holders of the Shares pursuant to such exemption which opinion shall be in form
and substance reasonably acceptable to such holders.
“Environmental Laws”
has the meaning set forth in Section 3.1(m).
“Evaluation Date”
has the meaning set forth in Section 3.1(s).
“Exchange”
has the meaning set forth in the recitals.
“Exchange Act”
has the meaning set forth in Section 3.1(g)(i).
“Exchange Debt”
has the meaning set forth in the recitals.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Federal Reserve”
has the meaning set forth in Section 3.1(jj).
“GAAP”
has the meaning set forth in Section 3.1(h).
“Hazardous Materials”
has the meaning set forth in Section 3.1(m).
“Holder”
has the meaning set forth in the preamble.
“Indebtedness”
has the meaning set forth in Section 3.1(aa).
“Intellectual Property
Rights” has the meaning set forth in Section 3.1(p).
“Intended Tax Treatment”
has the meaning set forth in Section 2.4(a).
“IT Systems and Data”
has the meaning set forth in Section 3.1(gg).
“Legend Removal Date”
has the meaning set forth in Section 4.1(c).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or similar restriction.
“Material Adverse
Effect” has the meaning set forth in Section 3.1(b).
“Material Permits”
has the meaning set forth in Section 3.1(n).
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“Money Laundering
Laws” has the meaning set forth in Section 3.1(kk).
“Note”
has the meaning set forth in the recitals.
“OFAC”
has the meaning set forth in Section 3.1(hh).
“Parties”
has the meaning set forth in the preamble.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding”
means an action, suit, investigation or proceeding (including an informal investigation or partial proceeding, such as a deposition),
whether commenced or threatened, before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign).
“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of the date hereof, between the Company and the Holder, in the
form attached hereto as Exhibit A.
“Registration Statement”
means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale by the
Holder of the Shares.
“Required Approvals”
has the meaning set forth in Section 3.1(e).
“Restricted Persons”
has the meaning set forth in Section 4.7(b).
“Rule 144”
means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule.
“SEC” means
the United States Securities and Exchange Commission.
“SEC Reports”
has the meaning set forth in Section 3.1(h).
“Securities Act”
has the meaning set forth in the recitals.
“Shares”
has the meaning set forth in the recitals.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“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).
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“Transaction Documents”
means this Agreement, the Registration Rights Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means Computershare Trust Company, N.A., the current transfer agent of the Company, and any successor transfer agent of the Company.
Article II.
EXCHANGE
2.1. Closing.
(a) Upon
the terms and subject to the conditions set forth herein, and pursuant to Section 3(a)(9) of the Securities Act, the Parties shall
consummate the Exchange (the “Closing”), pursuant to which the Holder shall convey, assign and transfer to the Company
the Exchange Debt, in exchange for which the Company shall issue to the Holder the Shares.
(b) The
Closing shall occur remotely on the date hereof (the “Closing Date”) immediately following satisfaction of the conditions
set forth in Section 2.3. Upon the delivery of the Shares to the Holder, the Holder shall relinquish all rights, title and interest
in the Exchange Debt, including any claims the Holder may have against the Company related thereto, and the Exchange Debt shall be deemed
cancelled.
2.2. Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to the Holder the following:
(i) this
Agreement, duly executed by the Company;
(ii) the
Registration Rights Agreement, duly executed by the Company; and
(iii) evidence
of the issuance of the Shares to the Holder in direct registration system (DRS) book-entry form, or another form reasonably acceptable
to the Holder.
(b) On
or prior to the Closing Date, the Holder shall deliver or cause to be delivered to the Company the following:
(i) this
Agreement, duly executed by the Holder;
(ii) the
Registration Rights Agreement, duly executed by the Holder;
(iii) the
Note, to be marked cancelled by the Company effective as of the Closing; and
(iv) a
properly completed and executed IRS Form W-9.
2.3. Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects) when
made and on the Closing Date of the representations and warranties of the Holder contained herein, unless such representation or warranty
is as of a specific date therein in which case they shall be accurate in all material respects (or, to the extent representations or warranties
are qualified by materiality, in all respects) as of such date;
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(ii) the
performance of all obligations, covenants and agreements of the Holder required to be performed at or prior to the Closing Date; and
(iii) the
delivery by the Holder of the items set forth in Section 2.2(b) of this Agreement.
(b) The
obligations of the Holder hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein, unless such
representation or warranty is as of a specific date therein in which case they shall be accurate in all material respects (or, to the
extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date;
(ii) the
performance of all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) the
absence of any Material Adverse Effect with respect to the Company since the date of this Agreement; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the SEC or the Company’s principal
Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have
been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service,
or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Holder,
makes it impracticable or inadvisable to acquire the Shares at the Closing.
2.4. Intended
Tax Treatment.
(a) The
Parties intend that, for U.S. federal (and applicable state and local) income tax purposes, (i) the Exchange be treated as a “recapitalization”
within the meaning of Section 368(a)(1)(E) of the Code, and (ii) the Company be treated as not recognizing any income from discharge of
indebtedness as a result of the Exchange pursuant to Sections 61(a)(11), 108(e)(8), and 108(e)(10) of the Code, or otherwise (the “Intended
Tax Treatment”).
(b) Each
Party shall, and shall cause its Affiliates to, unless otherwise required by a final “determination” (within the meaning of
Section 1313(a) of the Code (or any analogous or similar provision under applicable state or local income tax law)), (i) prepare and file
all applicable tax returns in a manner consistent with the Intended Tax Treatment, and (ii) take no position in any applicable tax return,
tax proceeding, or otherwise for applicable tax purposes that is inconsistent with the Intended Tax Treatment.
5
Article III.
REPRESENTATIONS AND WARRANTIES
3.1. Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules or as reasonably apparent in the SEC Reports, the Company hereby makes the following representations and warranties
to the Holder:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). Except as set forth on Schedule
3.1(a), the Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear
of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid,
non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries,
all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization (to the extent such good standing concept
exists in such jurisdiction), with the requisite power and authority to own and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries
is duly qualified to conduct business and is in good standing (to the extent such good standing concept exists in such jurisdiction) as
a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes
such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably
be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii)
a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company
and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail
such power and authority or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and
no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith
other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been
(or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
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(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it
is a party, the issuance and sale of the Shares and the consummation by it of the transactions contemplated hereby and thereby do not
and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse
of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company
or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or
Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which
the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not have or reasonably
be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.4 of this Agreement, (ii) the filings with the SEC pursuant to the Registration Rights Agreement, (iii) the notice
or application(s) to each applicable Trading Market for the issuance and sale of the Shares and the listing of the Shares for trading
thereon in the time and manner required thereby and (iv) such filings as are required to be made under applicable state securities laws
(collectively, the “Required Approvals”).
(f) Issuance
of the Shares. The Shares are duly authorized and, when issued in accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable and free and clear of all Liens imposed by the Company other than restrictions on transfer
provided for in the Transaction Documents.
(g) Capitalization.
(i) The
capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall also
include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. Except
as set forth on Schedule 3.1(g), the Company has not issued any capital stock since its most recently filed periodic report under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than pursuant to the exercise of employee
stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s
employee stock purchase plans and pursuant to the conversion or exercise of Common Stock Equivalents outstanding as of the date of the
most recently filed periodic report under the Exchange Act.
(ii) No
Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as set forth on Schedule 3.1(g), there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person
(other than the Holder). Except as set forth on Schedule 3.1(g), there are no outstanding securities or instruments of the Company
or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon
an issuance of securities by the Company or any Subsidiary (for purposes of clarity, excluding customary proportionate adjustments of
the exercise, conversion, exchange or reset price in connection with a subdivision of the outstanding shares of Common Stock into a larger
number of shares or a combination of the outstanding shares of Common Stock into a smaller number of shares). Except as set forth on Schedule
3.1(g), there are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become
bound to redeem a security of the Company or such Subsidiary. Except as set forth on Schedule 3.1(g), the Company does not have
any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
7
(iii) To
the Company’s knowledge, all of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully
paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No approval or authorization
of any shareholder, the Board of Directors or others is required for the issuance and sale of the Securities. Except as set forth on Schedule
3.1(g), there are no shareholders agreements, voting agreements or other similar agreements with respect to the voting of the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders.
(iv) To
the Company’s knowledge, each stock option granted by the Company under the Company’s stock option plan was granted (A) in
accordance with the terms of the Company’s stock option plan and (B) with an exercise price at least equal to the fair market value
of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. To the Company’s knowledge,
no stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there
is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant
of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their
financial results or prospects.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the
“SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC
Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The Company has not in the prior four years
been an issuer described in Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto
as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified
in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments. The Company is not currently contemplating to amend or restate any of the financial
statements included in the SEC Reports, nor is the Company currently aware of facts or circumstances which would require the Company to
amend or restate any of such financial statements, in each case, in order for any of such financial statements to be in conformity with
GAAP and in compliance with the published requirements of the Securities Act and Exchange Act, as applicable. The Company has not been
informed by its independent accountants that they recommend that the Company amend or restate any such financial statements or that there
is any need for the Company to amend or restate any of the financial statements.
8
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth on Schedule 3.1(i) or in the SEC Reports, (i) there has been no event, occurrence or development
that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or required
to be disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared
or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase
or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing Company stock option plans. The Company does not have pending before the SEC any request for confidential
treatment of information. Except for the transactions contemplated hereby or as set forth on Schedule 3.1(i), no event, liability,
fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company
or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required
to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been
publicly disclosed at least one Trading Day prior to the date that this representation is made.
(j) Litigation.
Except as set forth in the SEC Reports or on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j), (i)
adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Shares or (ii) would,
if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor
any Subsidiary, 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. There has not been,
and to the knowledge of the Company, 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. 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) Labor
Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that
their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries comply with all U.S. federal, state, local and foreign
laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where
the failure to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including all foreign,
federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety
and employment and labor matters, in each case, in any material respect.
9
(m) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution
or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata),
including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as
all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received
all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii),
the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them, and good
and marketable title in all personal property owned by them, and valid leasehold rights to lease or otherwise use all real property and
all personal property leased by them, that is material to the business of the Company and the Subsidiaries, in each case free and clear
of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and the Subsidiaries, (ii) Liens for the payment of federal, state or other
taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent
nor subject to penalties and (iii) Liens set forth on Schedule 3.1(g). Any real property and facilities held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance in all material respects.
(p) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have would have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two years from the date of this Agreement.
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC
Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the
rights of any Person, except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable (other than patent and trademark applications) and there is no existing
infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights, except where failure to do so
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
10
(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary for companies of similar size as the Company in the businesses in which the Company and the Subsidiaries
are engaged, other than directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a significant increase in cost which would reasonably be expected to have
a Material Adverse Effect.
(r) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports or on Schedule 3.1(r), none of the officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. Except as set forth on Schedule 3.1(s), the Company and the Subsidiaries are in material compliance
with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof and as
of the Closing Date, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date
hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the SEC’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by
the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented
in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been
no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries
that have materially affected, or are reasonably likely to materially affect, the internal control over financial reporting of the Company
and its Subsidiaries.
(t) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Holder shall have no obligation with respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this Section 3.1(t) that may be due in connection with the transactions
contemplated by the Transaction Documents.
11
(u) Investment
Company. The Company is not, and immediately after receipt of payment for the Shares will not be, an “investment company”
or a company that is “controlled” by an “investment company” as such terms are defined in the Investment Company
Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.
(v) Registration
Rights. Except as set forth on Schedule 3.1(v) and pursuant to the Registration Rights Agreement, 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.
(w) 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 terminate, 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 set forth in the SEC Reports or on Schedule 3.1(w), 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. Except as set forth in the SEC Reports or on Schedule
3.1(w), the Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with
all such listing and maintenance requirements. 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.
(x) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or would become applicable to the Holder as a result of the Holder and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including as a result of the Company’s issuance of the Shares and the
Holder’s ownership of the Shares.
(y) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided the Holder or its agents or counsel with any information that it
believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Holder will rely
on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf
of the Company to the Holder regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated
hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which
they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement
taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.
The Company acknowledges and agrees that the Holder makes no, and has made no, representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(z) No
Integrated Offering. Assuming the accuracy of the Holder’s representations and warranties set forth in Section 3.2, neither
the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Shares to be integrated
with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration of any Shares under the
Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company
are listed or designated.
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(aa) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the transactions contemplated
hereby, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect
of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s
assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including
its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected
capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the
Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient
to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur
debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect
of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization
or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. The Company has
not taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership,
liquidation or winding up, nor does the Company have any knowledge or reason to believe that any of its creditors intend to initiate involuntary
bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. Schedule 3.1(aa) sets
forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company
or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (A) any liabilities for
borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business),
(B) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or
should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary course of business; and (C) the present value of any lease
payments in excess of $100,000 due under leases required to be capitalized in accordance with GAAP. Except as set forth in Schedule
3.1(aa), neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(bb) Tax Status.
Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect,
the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and
franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations
and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.
(cc) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign
or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii)
failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the
Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(dd) Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(dd). To the knowledge and belief of the Company, such accounting
firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the
financial statements to be included in the Company’s next Annual Report on Form 10-K.
13
(ee) Acknowledgment
Regarding Holder’s Acquisition of Shares. The Company acknowledges and agrees that the Holder is transacting at an arm’s
length with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that the
Holder is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated thereby, and any advice given by the Holder or any of its representatives or agents in connection with
the Transaction Documents and the transactions contemplated thereby is merely incidental to the Holder’s acquisition of the Shares.
The Company further represents to the Holder that the Company’s decision to enter into this Agreement and the other Transaction
Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(ff) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) 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 Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Shares,
or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.
(gg) Cybersecurity.
(i)(A) To the Company’s knowledge, there is no current or ongoing material security breach or other compromise of or relating to
any of the Company’s or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including
the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment
or technology (collectively, “IT Systems and Data”) and (B) the Company and the Subsidiaries have not been notified
of, and has no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise
to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and
all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data
from unauthorized use, access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material
Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain
and protect its material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and
Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards
and practices.
(hh) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”).
(ii) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Holder’s request.
(jj) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or
Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.
(kk) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
14
(ll) No Registration.
Assuming the accuracy of the Holder’s representations and warranties set forth in Section 3.2, no registration under the
Securities Act is required for the offer and sale of the Shares by the Company to the Holder as contemplated hereby.
(mm) No Disagreements
with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably anticipated by the
Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is
current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of
its obligations under any of the Transaction Documents. In addition, on or prior to the date hereof, the Company had discussions with
its accountants about its financial statements previously filed with the SEC. Based on those discussions, the Company has no reason to
believe that it will need to restate any such financial statements or any part thereof.
(nn) Acknowledgement
Regarding Holder’s Trading Activity. The Company understands and acknowledges that, following the public disclosure of the transactions
contemplated by the Transaction Documents, except as explicitly set forth otherwise in Section 4.7(b), the Holder may engage in
hedging or trading activities (including, without limitation, the location or reservation of borrowable shares of Common Stock) at various
times during the period that the Shares are outstanding and such hedging or trading activities (including, without limitation, the location
or reservation of borrowable shares of Common Stock), if any, can reduce the value of the existing stockholders’ equity interest
in the Company both at and after the time the hedging or trading activities are being conducted.
3.2. Representations
and Warranties of the Holder. The Holder hereby represents and warrants as of the date hereof and as of the Closing Date to the
Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
(a) Organization;
Authority. The Holder is an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction
of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to
enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of the Transaction Documents and performance by the Holder of the transactions contemplated
by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action,
as applicable, on the part of the Holder. Each Transaction Document to which it is a party has been duly executed by the Holder, and when
delivered by the Holder in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Holder, enforceable
against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(b) Own
Account. The Holder understands that the Shares are “restricted securities” and have not been registered under the Securities
Act or any applicable state securities law and is acquiring such Shares as principal for its own account and not with a view to or for
distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable state securities law, has
no present intention of distributing any of such Shares in violation of the Securities Act or any applicable state securities law and
has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Shares
in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Holder’s
right to sell the Shares pursuant to the Registration Statement, if applicable, or otherwise in compliance with applicable federal and
state securities laws). For the avoidance of doubt, nothing herein shall be deemed to limit the ability of the Holder to resell all or
a part of the Shares in compliance with applicable federal and state securities laws.
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(c) Accredited
Status. At the time the Holder was offered the Shares, it was, and as of the date hereof it is, and on each date on which it acquires
any Shares, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8),
(a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a)
under the Securities Act.
(d) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, the Holder has not, nor has any
Person acting on behalf of or pursuant to any understanding with the Holder, directly or indirectly executed any purchases or sales, including
Short Sales, of the securities of the Company during the period commencing as of the time that the Holder first received a term sheet
(written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated
hereunder and ending immediately prior to the execution hereof. Other than to other Persons party to this Agreement or to the Holder’s
representatives, including its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, the Holder has
maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of
this transaction).
(e) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Holder to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction
Documents. The Company shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section 3.2(e) that may be due in connection with the transactions contemplated by the
Transaction Documents.
Article IV.
OTHER AGREEMENTS OF THE PARTIES
4.1. Removal
of Legends.
(a) The
Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Shares other than
pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Holder or in connection with a pledge
as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel
selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory
to the Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. As
a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and the Registration Rights
Agreement and shall have the rights and obligations of the Holder under this Agreement and the Registration Rights Agreement.
(b) The
Holder agrees to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Shares in the following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY
BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT
IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY THESE SECURITIES.
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The Company acknowledges and agrees
that the Holder may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security
interest in some or all of the Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a)
under the Securities Act and, if required under the terms of such arrangement, the Holder may transfer pledged or secured Shares to the
pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel
of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge.
At the appropriate Holder’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured
party of Shares may reasonably request in connection with a pledge or transfer of the Shares.
(c) Certificates
evidencing any Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof), (i) while a registration
statement (including the Registration Statement) covering the resale of such Shares is effective under the Securities Act, (ii) following
any sale of such Shares pursuant to Rule 144, (iii) if such Shares are eligible for sale under Rule 144, without volume or manner-of-sale
restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the SEC). If eligible for removal pursuant to the previous sentence, the Company shall cause
its outside counsel to issue a legal opinion to the Transfer Agent or the Holder promptly after the Effective Date if required by the
Transfer Agent to effect the removal of the legend hereunder. The Company agrees that following the Effective Date with respect to any
Shares, or at such time as such legend is no longer required under this Section 4.1(c), it will, as soon as possible and in any
event no later than two Trading Days following the delivery by the Holder to the Company or the Transfer Agent of a certificate representing
Shares issued with a restrictive legend along with any letter of representations reasonably requested by counsel (such date, the “Legend
Removal Date”), deliver or cause to be delivered to the Holder a certificate representing such Shares that is free from all
restrictive and other legends.
(d) The
Holder acknowledges and agrees that (i) the Holder may only sell any Shares pursuant to either the registration requirements of the Securities
Act, including any applicable prospectus delivery requirements, or an exemption therefrom; (ii) if Shares are sold pursuant to a registration
statement, such Shares will be sold in compliance with the plan of distribution set forth therein; and (iii) the removal of the restrictive
legend from certificates representing Shares as set forth in this Section 4.1 is predicated upon the Company’s reliance upon
this understanding.
4.2. Furnishing
of Information; Public Information. Until the time that the Holder owns no Shares, the Company covenants to maintain the registration
of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file
within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act,
even if the Company is not then subject to the reporting requirements of the Exchange Act.
4.3. Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the Shares in a manner that would require the registration
under the Securities Act of the sale of the Shares or that would be integrated with the offer or sale of the Shares for purposes of the
rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction
unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4. Securities
Laws Disclosure; Publicity. The Company shall file a Current Report on Form 8-K disclosing the material terms of the transactions
contemplated hereby, including the Transaction Documents required to be filed therewith as exhibits thereto, with the SEC no later than
two Trading Days after the execution of this Agreement. From and after the filing of such Form 8-K, the Company represents to the Holder
that it shall have publicly disclosed all material, non-public information delivered to the Holder by the Company or any of its Subsidiaries,
or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction
Documents. The Parties shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby,
and neither the Company nor the Holder shall issue any such press release nor otherwise make any such public statement without the prior
consent of the Company, with respect to any press release of the Holder, or without the prior consent of the Holder, with respect to any
press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law,
in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.
Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Holder, or include the name of the Holder in any
filing with the SEC or any regulatory agency or Trading Market, without the prior written consent of the Holder, except: (a) as required
by federal securities law in connection with (i) any registration statement contemplated by the Registration Rights Agreement and (ii)
the filing of final Transaction Documents with the SEC and (b) to the extent such disclosure is required by law or Trading Market regulations,
in which case the Company shall provide the Holder with prior notice of such disclosure permitted under this clause (b).
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4.5. Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that the
Holder is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that the Holder
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Shares under the Transaction Documents
or under any other agreement between the Parties.
4.6. Listing
of Common Stock. The Company hereby agrees to use reasonable efforts to maintain the listing or quotation of the Common Stock
on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all
of the Shares on such Trading Market and promptly secure the listing of all of the Shares on such Trading Market. The Company further
agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application all
of the Shares, and will take such other action as is necessary to cause all of the Shares to be listed or quoted on such other Trading
Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its
Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under
the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer
through the Depository Trust Company or another established clearing corporation, including by timely payment of fees to the Depository
Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.7. Certain
Transactions and Confidentiality.
(a) The
Holder covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases
or sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement
and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the Form 8-K as
described in Section 4.4. The Holder covenants that until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company pursuant to the Form 8-K as described in Section 4.4, the Holder will maintain the confidentiality of
the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules.
(b) Notwithstanding
any provision of this Agreement to the contrary, the Holder covenants that the Holder, together with Persons acting on the Holder’s
behalf, or any Affiliate of the foregoing (collectively, the “Restricted Persons”), shall not, directly or indirectly,
engage in or execute any Short Sale of the Common Stock, either for its own principal account or for the principal account of another
Restricted Person, during the period commencing with the execution of this Agreement and ending on the date that no Shares remain outstanding.
(c) The
Company expressly acknowledges and agrees that, except for the covenants set forth above in this Section 4.7, (i) the Holder makes
no representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company, (ii)
the Holder shall not be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable
securities laws from and after the time and (iii) this Agreement shall impose no duty on the Holder of confidentiality or to not trade
in the securities of the Company.
4.8. Blue
Sky Filings. If applicable, the Company shall take such action as the Company shall reasonably determine is necessary in order
to obtain an exemption for, or to qualify the Shares for, sale to the Holder at the Closing under applicable securities or “Blue
Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of the Holder.
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Article V.
MISCELLANEOUS
5.1. Termination.
This Agreement may be terminated by the Holder by written notice to the Company if the Closing has not been consummated on or before the
fifth Trading Day following the date hereof; provided, however, that no such termination will affect the right of any Party to
sue for any breach by any other Party.
5.2. Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each Party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such Party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including any fees
required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by the Holder),
stamp taxes and other taxes and duties levied in connection with the delivery of any Shares to the Holder.
5.3. Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the
Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the Parties acknowledge have been merged into such documents, exhibits and schedules.
5.4. Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email
attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment
at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (c) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service or (d) upon actual receipt by the Party to whom such notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached hereto.
5.5. Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Parties or, in the case of a waiver, by the Party against whom enforcement of any such waived provision
is sought. 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 any Party to exercise any right hereunder in any manner impair the exercise of any such right. Any
amendment effected in accordance with this Section 5.5 shall be binding upon the Parties.
5.6. Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Holder (other
than by merger). The Holder may assign any or all of its rights under this Agreement to any Person to whom the Holder assigns or transfers
any Shares, provided that such transferee agrees in writing to be bound, with respect to the transferred Shares, by the provisions of
the Transaction Documents that apply to the “Holder.”
5.8. No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the Parties and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
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5.9. Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be
governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each Party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a Party or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the New York City. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the New York City, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each Party hereby irrevocably waives
personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such Party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any Party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then the prevailing Party in such Action or Proceeding shall be
reimbursed by the non-prevailing Party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Action or Proceeding.
5.10. Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Shares.
5.11. Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each Party and delivered to each other Party, it being understood that
the Parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
5.12. Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their commercially reasonable efforts to
find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13. Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Parties will
be entitled to specific performance under the Transaction Documents. The Parties agree that monetary damages may not be adequate compensation
for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not
to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.
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5.14. Payment
Set Aside. To the extent that the Company makes a payment or payments to the Holder pursuant to any Transaction Document or the
Holder enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required
to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including any bankruptcy
law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made
or such enforcement or setoff had not occurred.
5.15. Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.16. Construction.
The Parties agree that each of them or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. As
used here, the words “including” or “includes” shall be deemed followed by “without limitation,” and
the word “or” shall be deemed to mean “and/or.”
5.17. WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
(Signature Page Follows)
21
IN WITNESS WHEREOF,
the Parties have caused this Exchange Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
BIG DIGITAL ENERGY, INC.
Address for Notice:
Big Digital Energy, Inc.
950 Railroad Avenue
By: /s/ Cody Smith
Midland, PA 15059
Name:
Cody Smith
Attention: Kaliste Saloom
Title:
Chief Operating Officer
Email: kaliste.saloom@bigdigital.energy
With a copy to (which shall not constitute
notice):
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, Minnesota 55402
Attn: Cam Hoang
Email: hoang.cam@dorsey.com
ENDEAVOR BLOCKCHAIN, LLC
Address for Notice:
Endeavor Blockchain, LLC
570 Euper Lane, Suite A
By:
/s/ Josh Kilgore
Fort Smith, AR 72903
Name:
Josh Kilgore
Attention: Josh Kilgore
Title:
Authorized Signatory
Email: josh@sixthirty.ai
[Signature Page to Exchange
Agreement]
EX-10.2 — REGISTRATION RIGHTS AGREEMENT, DATED SEPTEMBER 18, 2026, BY AND BETWEEN BIG DIGITAL ENERGY, INC. AND ENDEAVOR BLOCKCHAIN, LLC
EX-10.2
Filename: ea030646601ex10-2.htm · Sequence: 3
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of September 18, 2026, between Big Digital Energy, Inc., a Delaware
corporation (the “Company”), and Endeavor Blockchain, LLC, an Arkansas limited liability company (“Endeavor,”
and together with the Company, the “Parties”). This Agreement is made pursuant to the Exchange Agreement, dated as
of the date hereof, between the Company and Endeavor (the “Exchange Agreement”).
The Parties hereby agree as
follows:
1. Definitions.
Capitalized terms used and not
otherwise defined herein that are defined in the Exchange Agreement shall have the meanings given such terms in the Exchange Agreement.
As used in this Agreement, the following terms shall have the following meanings:
“Advice”
has the meaning set forth in Section 6(c).
“Agreement”
has the meaning set forth in the preamble.
“Company”
has the meaning set forth in the preamble.
“Effectiveness Date”
means, with respect to the Initial Registration Statement required to be filed hereunder, the 60th calendar day following the Closing
Date (or, in the event of a “full review” by the Commission, the 90th calendar day following the Closing Date) and with respect
to any additional Registration Statements which may be required pursuant to Section 2(b) or Section 3(c), the 30th calendar
day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full
review” by the Commission, the 60th calendar day following the date such additional Registration Statement is required to be filed
hereunder); provided, however, that in the event the Company is notified by the Commission that one or more of the above Registration
Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Dates as to such Registration
Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise
required above, subject to the Commission agreeing to the five Trading Day or shorter period; provided further, however, that
if such Effectiveness Date falls on a day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading
Day.
“Effectiveness Period”
has the meaning set forth in Section 2(a).
“Endeavor”
has the meaning set forth in the preamble.
“Exchange Agreement”
has the meaning set forth in the preamble.
“Filing Date”
means, with respect to the Initial Registration Statement required hereunder, the 21st calendar day following the Closing Date and, with
respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the earliest
practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable
Securities.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified Party”
has the meaning set forth in Section 5(c).
“Indemnifying Party”
has the meaning set forth in Section 5(c).
“Initial Registration
Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses”
has the meaning set forth in Section 5(a).
“Parties”
has the meaning set forth in the preamble.
“Plan of Distribution”
has the meaning set forth in Section 2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission pursuant to
the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities”
means, as of any date of determination, (a) all Shares then issued pursuant to the Exchange Agreement; and (b) any securities issued
or then issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing
clause (a); provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company
shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for
so long as (i) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission
under the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration
Statement, (ii) such Registrable Securities have been previously sold in accordance with Rule 144 or (iii) such securities are eligible
for resale without volume or manner-of-sale restrictions pursuant to Rule 144 as set forth in a written opinion letter to such effect,
addressed, delivered and acceptable to the Transfer Agent and the affected Holders.
“Registration Statement”
means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements
contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and supplements to any
such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in any such registration statement.
“Rule 415”
means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such
Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such
Rule.
“Selling Stockholder
Questionnaire” has the meaning set forth in Section 3(a).
“SEC Guidance”
means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission
staff; and (ii) the Securities Act.
2
2. Shelf Registration.
(a) On or prior
to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the
Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible
to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in
accordance herewith, subject to the provisions of Section 2(d)) and shall contain (unless otherwise directed by at least a majority
in interest of the Holders) the “Plan of Distribution” section in substantially the form attached hereto as Annex A
and the “Selling Stockholder” section in substantially the form attached hereto as Annex B; provided, however,
that no Holder shall be required to be named as an “underwriter” without such Holder’s express prior written consent;
provided further, however, that if the Commission requests that any Holder be identified as a statutory underwriter in any Registration
Statement, such Holder will have the option, in its sole and absolute discretion, either to withdraw from the Registration Statement
(which shall be exercised via such Holder’s prompt written request thereof to the Company), in which case the Company’s obligation
to register such Holder’s Registrable Securities shall be deemed satisfied, or to be included as such in the Registration Statement.
Subject to the terms of this Agreement, the Company shall cause a Registration Statement filed under this Agreement (including under
Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event
no later than the applicable Effectiveness Date, and shall use commercially reasonably efforts to keep such Registration Statement continuously
effective under the Securities Act until the date that no Holder holds any Registrable Securities covered by such Registration Statement(the
“Effectiveness Period”). The Company shall request effectiveness of a Registration Statement as of 5:00 p.m. Eastern
Time on a Trading Day. The Company shall notify the Holders by e-mail of the effectiveness of a Registration Statement on the same Trading
Day that the Company confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration
Statement. The Company shall, by 9:30 a.m. Eastern Time on the Trading Day after the effective date of such Registration Statement, file
a final Prospectus with the Commission as required by Rule 424.
(b) Notwithstanding
the registration obligations set forth in Section 2(a), if the staff of the Commission informs the Company that all of the Registrable
Securities cannot, as a result of the application of Rule 415 or other SEC Guidance, be registered for resale as a secondary offering
on a single registration statement, the Company shall promptly inform each of the Holders thereof and file amendments to the Initial
Registration Statement as required by the staff of the Commission, covering the maximum number of Registrable Securities permitted to
be registered by the staff of the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities
as a secondary offering, subject to the provisions of Section 2(d), with respect to filing on Form S-3 or other appropriate form;
provided, however, that prior to filing such amendment, the Company shall use diligent efforts to advocate with the staff of the
Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including Compliance and Disclosure
Interpretation 612.09.
(c) Notwithstanding
any other provision of this Agreement, if the staff of the Commission or any SEC Guidance sets forth a limitation on the number of Registrable
Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company
used diligent efforts to advocate with the staff of the Commission for the registration of all or a greater portion of Registrable Securities),
unless otherwise directed in writing by a Holder as to its Registrable Securities to register a lesser number, the number of Registrable
Securities to be registered on such Registration Statement will be reduced as follows:
(i) First, the
Company shall reduce or eliminate any securities to be included other than Registrable Securities; and
(ii) Second, the
Company shall reduce Registrable Securities on a pro rata basis based on the total number of unregistered Registrable Securities held
by such Holders.
In the event of a cutback hereunder, the
Company shall give the Holder at least five Trading Days prior written notice along with the calculations as to such Holder’s allotment.
In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use commercially
reasonable efforts to file with the Commission, as promptly as allowed by the staff of the Commission or SEC Guidance provided to the
Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register
for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended.
3
(d) If Form S-3
is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of
the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 as soon
as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect until
such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
3. Registration Procedures.
(a) Not less
than five Trading Days prior to the filing of each Registration Statement and not less than one Trading Day prior to the filing of any
related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to each Holder copies of all such documents
proposed to be filed, which documents (other than those incorporated or deemed incorporated by reference) will be subject to the review
of such Holders, and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such
inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments
or supplements thereto to which Holders of a majority of the Registrable Securities reasonably object in good faith, provided that, the
Company is notified of such objection in writing no later than three Trading Days after the Holders have been so furnished copies of
a Registration Statement or one Trading Day after the Holders have been so furnished copies of any related Prospectus or amendments or
supplements thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached hereto as Annex
C (a “Selling Stockholder Questionnaire”) on a date that is not less than two Trading Days prior to the Filing
Date or by the end of the fourth Trading Day following the date on which such Holder receives draft materials in accordance with this
Section 3(a).
(b) (i) Prepare
and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used
in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant
to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration
Statement or any amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence
from and to the Commission relating to a Registration Statement (provided that, the Company shall excise any information contained therein
which would constitute material non-public information regarding the Company or any of its Subsidiaries), and (iv) comply in all material
respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable
Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with
the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus
as so supplemented.
(c) If during
the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then
registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable
Filing Date (subject to SEC Guidance), an additional Registration Statement covering the resale by the Holders of not less than the number
of such Registrable Securities.
4
(d) Notify the
Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an
instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and,
in the case of (i)(A) below, not less than one Trading Day prior to such filing) and (if requested by any such Person) confirm such notice
in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment
to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review”
of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to
a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or
any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional
information, (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings
for that purpose, (iv) 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 Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding
for such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration
Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement,
Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading, and (vi) of the occurrence or existence of any pending
corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company,
makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided,
however, in no event shall any such notice contain any information which would constitute material, non-public information regarding
the Company or any of its Subsidiaries.
(e) Use commercially
reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness
of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
(f) Furnish to
each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such
Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly
after the filing of such documents with the Commission; provided, that any such item which is available on the EDGAR system (or successor
thereto) need not be furnished in physical form.
(g) Subject to
the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each
of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment
or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) Prior to
any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the
selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of such Registrable
Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder
reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not
then so subject or file a general consent to service of process in any such jurisdiction.
(i) If requested
by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities
to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by the
Exchange Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered
in such names as any such Holder may request.
5
(j) Upon the
occurrence of any event contemplated by Section 3(d), as promptly as reasonably possible under the circumstances taking into account
the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure
of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to
the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document
so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section
3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall
suspend use of such Prospectus. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus may be
resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(j) to suspend
the availability of a Registration Statement and Prospectus for a period not to exceed 60 calendar days (which need not be consecutive
days) in any 12-month period.
(k) Otherwise
use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act and
the Exchange Act, including Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof,
with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Holders are required
to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable Securities hereunder.
(l) The Company
shall use commercially reasonable efforts to maintain eligibility (or, if applicable, acquire eligibility) for use of Form S-3 (or any
successor form thereto) for the registration of the resale of Registrable Securities.
(m) The Company
may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the
shares.
4. Registration Expenses.
All fees and expenses incident to the performance of or compliance with, this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing
sentence shall (i) all registration and filing fees (including fees and expenses of the Company’s counsel and independent registered
public accountants) (A) with respect to filings made with the Commission, (B) with respect to filings required to be made with any Trading
Market on which the Common Stock is then listed for trading, and (C) in compliance with applicable state securities or Blue Sky laws
reasonably agreed to by the Company in writing (including fees and disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including expenses of printing certificates for
Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v)
Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained
by the Company in connection with the consummation of the transactions contemplated by this Agreement. In addition, the Company shall
be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this
Agreement (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any
annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange
as required hereunder. In no event shall the Company be responsible for any underwriter, broker or similar commissions or fees of any
Holder or, except to the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders.
6
5. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as
a result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees (and any other
Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title)
of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with a functionally
equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person,
to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including
reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to
(1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus
or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection
with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue statements
or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for
use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement,
such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto
for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the
use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of
the Advice contemplated in Section 6(d). The Company shall notify the Holders promptly of the institution, threat or assertion
of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Such
indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person and shall
survive the transfer of any Registrable Securities by any of the Holders in accordance with Section 6(e).
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents
and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, to the extent arising out of or based solely upon: any untrue or alleged untrue statement of
a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were
made) not misleading (i) to the extent, but only to the extent, that such untrue statement or omission is contained in any information
so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement or such Prospectus or (ii)
to the extent, but only to the extent, that such information relates to such Holder’s information provided in the Selling Stockholder
Questionnaire or the proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by
such Holder expressly for use in a Registration Statement (it being understood that the Holder has approved Annex A hereto
for this purpose), such Prospectus or in any amendment or supplement thereto. In no event shall the liability of a selling Holder be
greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating
to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement
or omission) received by such Holder upon the sale of the Registrable Securities included in the Registration Statement giving rise to
such indemnification obligation.
7
(c) Conduct
of Indemnification Proceedings.
(i) If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified
Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the
Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that, the failure
of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this
Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination
is not subject to appeal or further review) that such failure shall have materially and adversely prejudiced the Indemnifying Party.
(ii) An Indemnified
Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed
in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding
and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party
shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified
Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense
thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party).
The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent
shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party,
effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes
an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
(iii) Subject to
the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section
5(c)) shall be paid to the Indemnified Party, within 30 Trading Days of written notice thereof to the Indemnifying Party; provided,
that, the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to
such actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) not to be entitled to indemnification hereunder.
(d) Contribution.
(i) If the indemnification
under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless
for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements
or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue
or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates
to information supplied by, such Indemnifying Party or Indemnified Party, and the Parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a Party as a result
of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or
other fees or expenses incurred by such Party in connection with any Proceeding to the extent such Party would have been indemnified
for such fees or expenses if the indemnification provided for in this Section 5(d) was available to such Party in accordance with
its terms.
8
(ii) The Parties
agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation
or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding
paragraph. In no event shall the contribution obligation of a Holder of Registrable Securities be greater in amount than the dollar amount
of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount
of any damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.
(iii) The indemnity
and contribution agreements contained in this Section 5 are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
6. Miscellaneous.
(a) Remedies.
In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including
recovery of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and each Holder
agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach,
it shall not assert or shall waive the defense that a remedy at law would be adequate.
(b) No Piggyback
on Registrations; Prohibition on Filing Other Registration Statements. Neither the Company nor any of its security holders (other
than the Holders in such capacity pursuant hereto) may include securities of the Company in any Registration Statements other than the
Registrable Securities. The Company shall not file any other registration statements until all Registrable Securities are registered
pursuant to a Registration Statement that is declared effective by the Commission, provided that this Section 6(b) shall not prohibit
the Company from filing amendments to registration statements filed prior to the date of this Agreement or a Registration Statement on
Form S-8 relating to any stock option or similar plan.
(c) Discontinued
Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of
the occurrence of any event of the kind described in Section 3(d)(iii)-(vi), such Holder will forthwith discontinue disposition
of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”) by the
Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use
commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.
(d) Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by
the Company and the Holders of a majority or more of the then outstanding Registrable Securities, provided that, if any amendment, modification
or waiver disproportionately and adversely impacts a Holder (or group of Holders), the consent of such disproportionately impacted Holder
(or group of Holders) shall be required. If a Registration Statement does not register all of the Registrable Securities pursuant to
a waiver or amendment done in compliance with the previous sentence, then the number of Registrable Securities to be registered for each
Holder shall be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Securities
shall be omitted from such Registration Statement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly
affect the rights of other Holders may be given only by such Holder or Holders of all of the Registrable Securities to which such waiver
or consent relates; provided, however, that the provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this Section 6(d). No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration also is offered
to all of the Parties.
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(e) Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth
in the Exchange Agreement.
(f) Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the
Parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder
without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as permitted under Section 5.7 of the Exchange Agreement (in which case,
for the avoidance of doubt, such assignee shall agree in writing to be bound by the provisions of this Agreement that apply to the “Holders”).
(g) No Inconsistent
Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its
Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect
of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Except as set forth
in Schedule 3.1(v) to the Exchange Agreement, neither the Company nor any of its Subsidiaries has previously entered into any agreement
granting any registration rights with respect to any of its securities to any Person that have not been satisfied in full.
(h) Execution
and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to the other Party,
it being understood that all Parties need not sign the same counterpart. In the event that any signature is delivered by electronic mail
(including “.pdf” or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g. docusign.com) or other
transmission method, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature
is executed) with the same force and effect as if it were an original thereof.
(i) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Exchange Agreement.
(j) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
(k) Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(l) Interpretation.
The headings in this Agreement are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit
or affect any of the provisions hereof. As used herein, the words “including” or “includes” shall be deemed followed
by “without limitation,” and the word “or” shall be deemed to mean “and/or.”
10
(m) Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with the obligations
of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder
hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder
pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other
kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect
to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Holders
are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions.
Each Holder shall be entitled to protect and enforce its rights, including the rights arising out of this Agreement, and it shall not
be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. The use of a single agreement
with respect to the obligations of the Company contained herein was solely in the control of the Company, not the action or decision
of any Holder, and was done solely for the convenience of the Company and not because it was required or requested to do so by any Holder.
It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder, solely, and
not between the Company and the Holders collectively and not between and among Holders.
(Signature Pages Follow)
11
IN WITNESS WHEREOF, the
Parties have executed this Registration Rights Agreement as of the date first written above.
BIG DIGITAL ENERGY, INC.
By:
/s/ Cody Smith
Name:
Cody Smith
Title:
Chief Operating Officer
ENDEAVOR BLOCKCHAIN, LLC
By:
/s/ Josh Kilgore
Name:
Josh Kilgore
Title:
Authorized Signatory
[Signature Page to Registration
Rights Agreement]
Annex A
Plan of Distribution
Each Selling Stockholder (the
“Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from
time to time, sell, separately or together, any or all of their securities covered hereby on the principal Trading Market or any other
stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed
or negotiated prices. To the extent the Selling Stockholders 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. A Selling Stockholder
may use any one or more of the following methods when selling securities:
● ordinary brokerage transactions
and transactions in which the broker-dealer solicits purchasers;
● block trades in which the broker-dealer
will attempt to sell the securities 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;
● through one or more underwritten
offerings on a firm commitment or best efforts basis;
● settlement of short sales ;
● in transactions through broker-dealers
that agree with the Selling Stockholders to sell a specified number of such securities at
a stipulated price per security;
● through the writing or settlement
of options or other hedging transactions, whether through an options exchange or otherwise;
● through the distribution of securities
by any Selling Stockholder to its partners, members or securityholders;
● a combination of any such methods
of sale; or
● any other method permitted pursuant
to applicable law.
The Selling Stockholders may
also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities
Act”), if available, rather than under this prospectus. The Selling Stockholders 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.
Broker-dealers engaged by the
Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts
to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of
a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown
in compliance with FINRA IM-2440.
In connection with the sale
of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling
Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders may
from time to time pledge or grant a security interest in some or all of their securities 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 securities pledged or secured thereby pursuant
to this prospectus. The Selling Stockholders and any other persons participating in the sale or distribution of the securities will be
subject to applicable provisions of the Securities Act and the Exchange Act, and the rules and regulations thereunder, including Regulation
M. These provisions may restrict certain activities of, and limit the timing of purchases and sales of any of the securities by, the
Selling Stockholders or any other person, which limitations may affect the marketability of the securities.
The Selling Stockholders also
may transfer the shares of our securities 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.
A Selling Stockholder that is
an entity may elect to make a pro rata in-kind distribution of securities to its members, partners or shareholders pursuant to the registration
statement of which this prospectus is part by delivering a prospectus. To the extent that such members, partners or shareholders are
not affiliates of ours, such members, partners or shareholders would thereby receive freely tradeable securities pursuant to the distribution
through a registration statement.
The Selling Stockholders and
any broker-dealers or agents that are involved in selling the securities 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 securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
The Company is required to pay
certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus
effective until the earlier of the date on which (i) the securities may be resold by the Selling Stockholders without registration and
without regard to any volume or manner-of-sale limitations by reason of Rule 144 or (ii) all of the securities have been sold pursuant
to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only
through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states,
the resale securities covered hereby 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.
Under applicable rules and regulations
under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making
activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules
and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the Selling
Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them
of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with
Rule 172 under the Securities Act).
Annex B
SELLING STOCKHOLDERS
The shares of common stock being
offered by the selling stockholders are those previously issued to the selling stockholders pursuant to the Exchange Agreement. For additional
information regarding the issuances of such shares, see “Debt Exchange Transaction” above. We are registering the shares
of common stock in order to permit the selling stockholders to offer the shares for resale from time to time.
The table below lists the selling
stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders.
The second column lists the number of shares of common stock beneficially owned by each selling stockholder as of , 2026.
The third column lists the shares of common stock being offered by this prospectus by the selling stockholders. The fourth column assumes
the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.
The selling stockholders may
sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Name of Selling
Stockholder
Shares of Common Stock
Owned Prior to Offering
Maximum Shares of
Common Stock to be Sold
Pursuant to this
Prospectus
Shares of Common Stock
Owned After this
Offering
Annex C
BIG DIGITAL ENERGY, INC.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial owner
of common stock (the “Registrable Securities”) of Big Digital Energy, Inc., a Delaware corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”)
a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the
Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the
Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise
defined herein have the meanings ascribed thereto in the Registration Rights Agreement.
Certain legal consequences arise
from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial
owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or
not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial owner
(the “Selling Stockholder”) of Registrable Securities hereby elects to include the Registrable Securities owned by
it in the Registration Statement.
The undersigned hereby provides
the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name:
(a) Full Legal
Name of Selling Stockholder:
(b) Full Legal
Name of Registered Holder (if not the same as (a) above) through which Registrable Securities are held:
(c) Full Legal
Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose
of the securities covered by this Questionnaire):
2. Address for Notices
to Selling Stockholder:
Telephone: _____________________________________________________________________________________
Email:__________________________________________________________________________________________
Contact Person:__________________________________________________________________________________
3. Broker-Dealer Status:
(a) Are you a
broker-dealer?
Yes ☐
No ☐
(b) If “yes”
to Section 3(a), did you receive your Registrable Securities as compensation for investment banking services to the Company?
Yes ☐
No ☐
Note: If “no” to
Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
(c) Are you an
affiliate of a broker-dealer?
Yes ☐
No ☐
(d) If you are
an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities in the ordinary course of business, and
at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly,
with any person to distribute the Registrable Securities?
Yes ☐
No ☐
Note: If “no” to
Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.
4. Beneficial Ownership
of Securities of the Company Owned by the Selling Stockholder.
Except as set forth below in this
Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than the securities issuable
pursuant to the Exchange Agreement.
(a) Type and
Amount of other securities beneficially owned by the Selling Stockholder:
5. Relationships with the
Company:
Except as set forth below, neither
the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities
of the undersigned) 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:
The undersigned agrees to promptly
notify the Company of any material inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective; provided, that the undersigned shall not be required to notify the Company
of any changes to the number of securities held or owned by the undersigned or its affiliates.
By signing below, the undersigned
consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information
in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that
such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and
the related prospectus and any amendments or supplements thereto.
IN WITNESS WHEREOF the
undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Date:
Beneficial Owner:
By:
Name:
Title:
PLEASE EMAIL A .PDF COPY OF THE COMPLETED
AND EXECUTED NOTICE AND QUESTIONNAIRE TO:
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