Form 8-K
8-K — New ERA Energy & Digital, Inc.
Accession: 0001213900-26-113530
Filed: 2026-10-29
Period: 2026-10-28
CIK: 0002028336
SIC: 1311 (CRUDE PETROLEUM & NATURAL GAS)
Item: Entry into a Material Definitive Agreement
Item: Unregistered Sales of Equity Securities
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — ea0310066-8k_newera.htm (Primary)
EX-10.1 — FORM OF SECURITIES PURCHASE AGREEMENT, DATED OCTOBER 28, 2026, BY AND AMONG THE COMPANY AND THE INVESTORS NAMED THEREIN (ea031006601ex10-1.htm)
EX-10.2 — REGISTRATION RIGHTS AGREEMENT, DATED OCTOBER 28, 2026, BY AND AMONG THE COMPANY AND THE INVESTORS NAMED THEREIN (ea031006601ex10-2.htm)
EX-99.1 — PRESS RELEASE, DATED OCTOBER 29, 2026 (ea031006601ex99-1.htm)
GRAPHIC (ea031006601_ex99-1img1.jpg)
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8-K — CURRENT REPORT
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of
the
Securities Exchange Act of 1934
October 28, 2026
Date of Report (Date of earliest event reported)
NEW ERA ENERGY & DIGITAL, INC.
(Exact Name of Registrant as Specified in Charter)
Nevada
001-42433
99-3749880
(State or Other Jurisdiction
of Incorporation)
(Commission File Number)
(I.R.S. Employer
Identification Number)
200 N. Loraine Street, Suite 1324
Midland, TX
79701
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone number, including
area code: (432) 695-6997
Not Applicable
(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:
☐
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
NUAI
The Nasdaq Stock Market LLC
Warrants
NUAIW
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.
Securities Purchase Agreements
On October 28, 2026, New
Era Energy & Digital, Inc. (the “Company”) entered into Securities Purchase Agreements (the “Purchase Agreements”)
with certain accredited investors (the “Investors”) to sell shares of common stock of the Company, par value $0.0001 per share
(“Common Stock”), in a private placement for gross proceeds of approximately $64 million (the “Private Placement”).
The Company will issue an aggregate of 23,272,727 shares of Common Stock (the “Shares”), at a price of $2.75 per share, to
the Investors pursuant to the Purchase Agreements. The Purchase Agreements contain customary representations, warranties, conditions and
covenants of the Company and the Investors. Prior to the closing of the Private Placement, the Company had 117,291,542 shares of Common
Stock outstanding. Following the closing of the Private Placement, the Company will have 140,564,269 shares of Common Stock outstanding.
The Company expects to
use the net proceeds of the Private Placement for (i) the repayment of indebtedness, including the repayment of an aggregate amount
of $36 million under the Company’s existing term loan agreement with Macquarie Equipment Capital Inc., including the
applicable MOIC premium thereunder, (ii) working capital and (iii) other general corporate purposes. The closing of the Private
Placement is expected to occur on October 30, 2026.
Registration Rights Agreement
In connection with the Private
Placement, on October 28, 2026, the Company entered into a registration rights agreement (the “Registration Rights Agreement”)
with the Investors, pursuant to which the Company agreed to file a registration statement with the Securities and Exchange Commission
(the “SEC”) covering the resale of the Shares within 15 business days following the date of the Registration Rights Agreement,
and to use commercially reasonable efforts to cause such registration statement to be declared effective within 45 calendar days following
the filing date (or 90 calendar days in the event of a “full review” by the SEC) and to keep such registration statement continuously
effective until the Shares no longer constitute registrable securities.
The foregoing descriptions
of the Purchase Agreements and the Registration Rights Agreement are not complete and are qualified in their entirety by reference to
the full text of the form of Purchase Agreement and the Registration Rights Agreement, which are filed as Exhibits 10.1 and 10.2, respectively,
to this Current Report on Form 8-K (this “Current Report”) and incorporated herein by reference.
Item
3.02 Unregistered Sales of Equity Securities.
The information regarding the Private Placement set forth in Item 1.01
of this Current Report is incorporated herein by reference. The Shares are being offered and sold in reliance upon the exemption from
the registration requirements provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”),
and Rule 506(b) of Regulation D promulgated thereunder. Each Purchaser represented that it is an accredited investor within the meaning
of Rule 501(a) of Regulation D and is acquiring the Shares as principal for its own account and not with a view to or for distributing
or reselling the Shares. The Shares were offered without any general solicitation by the Company or its representatives.
Northland Capital
Markets acted as placement agent for the Private Placement and will receive a placement agent fee equal to 6% of the gross proceeds
raised in the Private Placement, together with customary expense reimbursements.
1
Item
7.01 Regulation FD.
On October 29, 2026, the
Company issued a press release announcing the Private Placement. A copy of the press release is furnished as Exhibit 99.1 hereto and is
incorporated herein by reference.
The information in this Current
Report on Form 8-K under Item 7.01 and Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of Section 18
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section,
nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth
by specific reference in such filing.
Cautionary
Statements
This Current Report on Form
8-K contains “forward-looking statements.” Forward-looking statements reflect the current view about future events. When used
in this Current Report on Form 8-K, the words “anticipate,” “believe,” “estimate,” “expect,”
“future,” “intend,” “plan” or the negative of these terms and similar expressions, as they relate
to us or our management, identify forward-looking statements. Such statements include, but are not limited to, statements contained in
this Current Report on Form 8-K relating to the use of the net proceeds of the Private Placement and the filing and effectiveness of the
resale registration statement. Forward-looking statements are based on our current expectations and assumptions regarding our business,
the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties,
risks and changes in circumstances that are difficult to predict. Our actual results may differ materially from those contemplated by
the forward-looking statements. They are neither statements of historical fact nor guarantees of assurance of future performance. We caution
you therefore against relying on any of these forward-looking statements. Important factors could cause actual results to differ
materially from those in the forward-looking statements. The Company undertakes no obligation to update any forward-looking statement,
except as required by law.
2
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No.
Description
10.1
Form of Securities Purchase Agreement, dated October 28, 2026, by and among the Company and the Investors named therein.
10.2
Registration Rights Agreement, dated October 28, 2026, by and among the Company and the Investors named therein.
99.1
Press Release, dated October 29, 2026.
104
The cover page from this Current Report on Form 8-K, formatted in Inline XBRL.
3
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this Current Report to be signed on its behalf by the undersigned
hereunto duly authorized.
Date: October 29, 2026
NEW ERA ENERGY & DIGITAL, INC.
By:
/s/ Charles Nelson
Name:
Charles Nelson
Title:
Chief Executive Officer
4
EX-10.1 — FORM OF SECURITIES PURCHASE AGREEMENT, DATED OCTOBER 28, 2026, BY AND AMONG THE COMPANY AND THE INVESTORS NAMED THEREIN
EX-10.1
Filename: ea031006601ex10-1.htm · Sequence: 2
Exhibit 10.1
Execution Version
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”)
is dated as of October 28, 2026, between New Era Energy & Digital, Inc., a Nevada corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively, the “Purchasers”).
WHEREAS, subject to the terms and conditions set
forth in this Agreement and pursuant to an exemption from the registration requirements of Section 5 of the Securities Act contained in
Section 4(a)(2) thereof and/or Rule 506 of Regulation D thereunder as to the Shares of Common Stock, the Company desires to issue and
sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company
as more fully described in this Agreement.
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 Company and each Purchaser agree as follows:
ARTICLE
I.
DEFINITIONS
Section 1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Acquiring Person” shall have
the meaning ascribed to such term in Section 4.5.
“Action” shall have the meaning
ascribed to such term 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.
“Board of Directors” means the
board of directors of the Company.
“Business Day” means any day
except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions
in the State of New York are authorized or required by law or other governmental action to close; 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 the City of New York generally are open for use by customers on such day.
“Closing” means the closing
of the purchase and sale of the Shares pursuant to Section 2.1.
“Closing Date” means the Trading
Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent
to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Shares,
in each case, have been satisfied or waived, but (a) in no event earlier than the first Trading Day following the date hereof and (b)
in no event later than the fifth Trading Day after the date of this Agreement.
“Commission” means the United
States Securities and Exchange Commission.
“Common Stock” means the common
stock of the Company, par value $0.0001 per share.
Page 1
“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,
without limitation, any debt, preferred shares, 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 Counsel” means Vinson
& Elkins L.L.P and Anthony, Linder & Cacomanolis, PLLC, Nevada counsel to the Company, as applicable.
“Disclosure Time” means, (i)
if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York City
time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, and (ii) if this Agreement
is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York
City time) on the date hereof.
“Evaluation Date” shall have
the meaning ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the
issuance of (a) shares of Common Stock, restricted stock awards, restricted stock unit awards, options or other equity or inducement awards
(or the issuance of shares of Common Stock upon the exercise or settlement, including any “net” or “cashless”
exercises or settlements of any such awards) to employees, consultants, officers or directors of the Company, (b) the filing by the Company
of a registration statement on Form S-8 with respect to any such share or option plan or arrangement, (c) securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange
price or conversion price of such securities (other than in connection with share splits or combinations) or to extend the term of such
securities, (d) any securities in connection with the transactions pursuant to this Agreement and any securities upon the exercise or
exchange of or conversion of any securities issued hereunder, (e) securities issued or agreements to issue securities pursuant to acquisitions
(whether by merger, purchase of equity or assets, or other reorganization), bona fide joint ventures or other strategic transactions,
or in payment of contractor, vendor or other service provider invoices or compensation in the ordinary course of business consistent with
past practice, in each case approved by a majority of the disinterested directors of the Company, provided that such securities are issued
as “restricted securities” (as defined in Rule 144) provided that such issuances shall not include a transaction in which
the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in
securities, (f) securities issued pursuant to agreements, arrangements or obligations in effect on the date of this Agreement and disclosed
in the SEC Reports (as in effect on the date of this Agreement), including warrants to purchase shares of Common Stock, and (g) warrants
or other Common Stock Equivalents (and shares of Common Stock issuable upon the exercise, exchange or conversion thereof) issued to any
lender, agent, lessor or other provider of debt financing (or any of their respective Affiliates) in connection with any bona fide loan,
credit facility, term loan, equipment or project financing, sale-leaseback or other debt financing transaction (including any amendment,
extension, upsizing, additional tranche, draw or refinancing of any of the foregoing, and including the Term Loan Agreement), in each
case approved by the Board of Directors, provided that the primary purpose of such transaction is not to raise equity capital; and further
provided that any issuances or sales under the Company’s existing at-the-market program shall not constitute an Exempt Issuance.
As used herein, “Term Loan Agreement” means that certain Term Loan Agreement, dated as of April 8, 2026, by and among Texas
Critical Data Centers LLC, and Macquarie Equipment Capital LLC, as administrative agent, as amended prior to the date hereof
“FCPA” means the Foreign Corrupt
Practices Act of 1977, as amended.
“Indebtedness” shall have the
meaning ascribed to such term in Section 3.1(aa).
“Intellectual Property Rights”
shall have the meaning ascribed to such term in Section 3.1(p).
Page 2
“Legend Removal Date” shall
have the meaning ascribed to such term in Section 4.1(d).
“Liens” means a lien, charge,
pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” shall
have the meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have
the meaning ascribed to such term in Section 3.1(n).
“Per Share Purchase Price” equals
$2.75, subject to adjustment for reverse and forward share splits, share dividends, share combinations and other similar transactions
of the shares of Common Stock that occur after the date of this Agreement.
“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.
“Placement Agent” means Northland
Securities, Inc.
“Proceeding” means an action,
claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition)
pending or, to the Company’s knowledge, threatened in writing 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).
“Purchaser Party” shall have
the meaning ascribed to such term in Section 4.8.
“Registration Rights Agreement”
means the Registration Rights Agreement, dated on or about the date hereof, among the Company and the Purchasers, in the form of Exhibit
A attached hereto.
“Registration Statement” means
a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale by the Purchasers
of the Shares.
“Required Approvals” shall have
the meaning ascribed to such term in Section 3.1(e).
“Rule 144” means Rule 144 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.
“SEC Reports” shall have the
meaning ascribed to such term in Section 3.1(h).
“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares” means the shares of
Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short Sales” means all “short
sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing
shares of Common Stock).
“Subscription Amount” means,
as to each Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified below such Purchaser’s name on
the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately
available funds.
Page 3
“Subsidiary” means any subsidiary
of the Company as set forth in Exhibit 21.1 to the Form 10-K filed by the Company on March 12, 2026 for the year ended December 31, 2025,
as amended by Amendment No. 1 on Form 10-K/A filed with the Commission on March 13, 2026, and any subsidiary subsequently disclosed in
the SEC Reports, 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 are 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, the New York Stock Exchange (or any successors to
any of the foregoing).
“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 Continental
Stock Transfer & Trust Company, and any successor transfer agent of the Company.
“VWAP” means, for any date,
the price determined by the first of the following clauses that applies: (a) if the Common Stock are then listed or quoted on a Trading
Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market
on which the Common Stock are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City
time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock are not then listed or quoted
for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a similar organization
or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d)
in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith
by the Purchasers of a majority in interest of the Shares then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
ARTICLE
II.
PURCHASE AND SALE
Section 2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally
and not jointly, agree to purchase, an aggregate of $63,999,999.25 of Shares (at the Per Share Purchase Price). Each Purchaser shall deliver
to the Company, via wire transfer (or, if settlement is via DVP, through the Placement Agent’s clearing firm), immediately available
funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the
Company shall deliver to each Purchaser its Shares, and the Company and each Purchaser shall deliver the other items set forth in Section
2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall
occur at a location as the parties hereto shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares
shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the Closing Date, the Company shall issue the
Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement
Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares
to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the
Company).
Page 4
Section 2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser (and, as applicable, the Placement
Agent) the following:
(i) this Agreement duly executed by the Company;
(ii) legal opinions of Company Counsel addressed to each of the Placement Agent and the Purchasers, in a form reasonably acceptable to
the Purchasers and the Placement Agent, as applicable;
(iii) the Company shall have provided each Purchaser and the Placement Agent with a certificate executed by the Chief Financial Officer
of the Company, dated as of such date, certifying that the conditions specified in Section 2.3(b)(i), (ii) and (iv) have been fulfilled;
(iv) a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to issue in registered book-entry form
the number of Shares equal to such Purchaser’s Subscription Amount applicable to the Shares divided by the Per Share Purchase Price,
registered in the name of such Purchaser (or, if settlement is via DVP, registered in the name and address of such Purchaser and released
by the Transfer Agent directly to the account(s) at the Placement Agent identified by such Purchaser);
(v) wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief Financial Officer; and
(vi) the Registration Rights Agreement duly executed by the Company.
(b) On
or prior to the Closing Date (unless otherwise set forth below), each Purchaser shall deliver or cause to be delivered to the Company,
as applicable, the following:
(i) this Agreement duly executed by such Purchaser;
(ii) the Registration Rights Agreement duly executed by such Purchaser; and
(iii) such Purchaser’s Subscription Amount by wire transfer to the account specified in wire instructions delivered pursuant to Section
2.2(a)(v) or, if settlement is via DVP, through the Placement Agent’s clearing firm.
Section 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 or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been
performed in all material respects; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
Page 5
(b) The
respective obligations of the Purchasers 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
as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission 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 such Purchaser,
makes it impracticable or inadvisable to purchase the Shares at the Closing.
ARTICLE
III.
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations
and Warranties of the Company. Except as set forth in the SEC Reports, which SEC Reports shall be deemed a part hereof and
shall qualify any representation or warranty otherwise made herein to the extent of the disclosure contained in the SEC Reports, the Company
hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on the SEC Reports. Except as disclosed in the SEC Reports, the
Company owns, directly or indirectly, all of the capital share 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.
(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, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary is in violation nor default
of any of the provisions of its respective certificate or articles of incorporation or other organizational or charter documents. Each
of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing 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, 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”); provided that a change in
the market price or trading volume of the Common Stock alone shall not be deemed, in and of itself, to constitute a Material Adverse Effect.
To the Company’s knowledge, 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.
Page 6
(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 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.
(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
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 filing with the Commission of the Registration Statement pursuant to the Registration Rights
Agreement, (iii) application(s) to each applicable Trading Market for the listing of the Shares for trading thereon in the time and manner
required thereby, and (iv) the filing of Form D with the Commission and such filings as are required to be made under applicable state
securities laws (collectively, the “Required Approvals”).
Page 7
(f) Issuance
of the Shares; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents. The Company has reserved from its duly authorized capital shares the
maximum number of shares of Common Stock issuable pursuant to this Agreement.
(g) Capitalization.
The Company’s disclosure of its authorized, issued and outstanding capital stock in the SEC Reports containing such disclosure was
accurate in all material respects as of the date indicated in such SEC Reports. The Company has not issued any capital shares since its
most recently filed periodic report under the Exchange Act, other than as disclosed in any SEC Report filed after such periodic report
or as set forth on Schedule 3.1(g), pursuant to the exercise of employee share options under the Company’s share option plans, the
issuance of shares of Common Stock or Common Stock Equivalents to employees, consultants and directors pursuant to the Company’s
equity incentive plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most
recently filed periodic report under the Exchange Act. Except as a result of the purchase and sale of the Shares and as set forth in the
SEC Reports, 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 share 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 shares of any Subsidiary. Except as set forth in the SEC Reports, 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. Except as set forth in the SEC Reports, 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 in the SEC Reports, the Company does not have any share appreciation rights
or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding capital shares of the Company
are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all applicable 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. Except for the Required Approvals, no further approval or authorization of any shareholder, the Board of Directors
or others is required for the issuance and sale of the Shares. There are no shareholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital shares to which the Company is a party or, to the knowledge of the Company, between
or among any of the Company’s shareholders.
(h) SEC
Reports; Financial Statements. Except as disclosed in the SEC Reports, the Company has filed all reports, schedules, forms, statements
and other documents required to be filed by the Company under the Securities Act and 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 (or, if amended or superseded by a subsequent filing prior to the date hereof, as of the date of such subsequent filing),
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 the light of the circumstances under which they were made, not misleading. As a result of the business
combination with Roth CH Acquisition V Co. consummated on December 6, 2024, the Company is an issuer described in Rule 144(i)(1)(i) under
the Securities Act; as of the date hereof, the Company has satisfied the conditions set forth in Rule 144(i)(2) under the Securities Act.
The financial statements of the Company included in the SEC Reports (giving effect to any restatement thereof reflected in a subsequently
filed SEC Report) complied in all material respects with applicable accounting requirements and the rules and regulations of the Commission
with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with U.S. 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.
Page 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 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 material 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 disclosed in filings
made with the Commission, (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 shares and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to the Company’s equity incentive plan disclosed in the SEC Reports. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement, 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 (1) Trading Day prior to the date that this representation is made.
(j) Litigation.
Except as reported in the SEC Reports, there is no material 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 in the SEC Reports (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 Company’s
knowledge, 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, which would reasonably be expected to result in a Material Adverse
Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission
involving the Company or any current or former director or officer of the Company. The Commission 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.
Page 9
(k) Labor
Relations. No 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. 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 are in compliance with all applicable 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 be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Environmental
Laws. Except as otherwise disclosed in the SEC Reports, the Company and its Subsidiaries (i) are in compliance with all applicable
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.
(m) 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 without limitation
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, except in each case as would not have or reasonably be expected to result in a Material Adverse
Effect.
Page 10
(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 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 described in the SEC Reports, (ii) 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,
and (iii) 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. 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, except where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect.
(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 except as would not have
or reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). Except
as set forth in the SEC Reports, 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 (2) years from the date of this Agreement, except in the ordinary course of business or which would not reasonably be expected
to have a Material Adverse Effect. 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 could 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 and there is no existing infringement by
another Person of any of the Intellectual Property Rights, except as would not reasonably be expected to have a Material Adverse Effect.
The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their
intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the
Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all
material Intellectual Property Rights that are necessary to conduct its business.
(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 the Company’s size and in the businesses in which the Company and the Subsidiaries
are engaged. 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.
Page 11
(r) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, 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 share option agreements under any share option plan of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. Except as disclosed in the
SEC Reports, 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 Commission’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. Except as disclosed in the SEC Reports, since the Evaluation
Date, (A) 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, and (B) the Company is not aware of any other material weakness in its internal
control over financial reporting or any fraud, whether or not material, that involves management or other employees who have a significant
role in the Company’s internal control over financial reporting.
(t) Certain
Fees. Except as otherwise disclosed to the Placement Agent, no brokerage or finder’s fees or commissions are 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. Except as otherwise disclosed to the Placement Agent, the
Purchasers 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 that may be due in connection with the transactions contemplated by the Transaction Documents.
Page 12
(u) Investment
Company. The Company is not, and immediately after receipt of payment for the Shares, will not be, an “investment company”
within the meaning of 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 in the SEC Reports, 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 shares of Common Stock are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of
the shares of Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice
from any Trading Market on which the Common Stock are or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. The 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 are 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. Except as provided in the SEC Reports, 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 articles of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company
fulfilling their respective obligations or exercising their respective rights under the Transaction Documents, including without limitation,
as a result of the Company’s issuance of the Shares and the Purchasers’ 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 Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the SEC Reports.
The Company understands and confirms that the Purchasers 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 Purchasers regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby, 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 the 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 the light of the circumstances under which they were made and
when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with
respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
Page 13
(z) No
Integrated Offering. Assuming the accuracy of the Purchasers’ 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 the 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, which, if integrated, will not be obtained.
(aa) Indebtedness. The SEC
Reports set forth as of the date of the most recent balance sheet included therein all outstanding secured and unsecured Indebtedness
of the Company or any Subsidiary (excluding any unpaid interest thereon accrued since the Evaluation Date), or for which the Company or
any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) 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), (y) 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 (z) the present value of any lease payments in excess
of $100,000 due under leases required to be capitalized in accordance with GAAP.
(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 and (iv) has 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.
Page 14
(dd) Accountants. Weaver and
Tidwell, L.L.P., which has audited the financial statements of the Company included in the SEC Reports, is an independent registered public
accounting firm with respect to the Company as required by the Securities Act, the Exchange Act and the applicable rules and regulations
of the Commission and the Public Company Accounting Oversight Board. To the knowledge and belief of the Company, such accounting firm
shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report on Form 10-K for
the fiscal year ending December 31, 2026.
(ee) Acknowledgment Regarding Purchaser’s
Purchase of Shares. The Company acknowledges and agrees that each Purchaser is acting solely in the capacity of an arm’s length
purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no
Purchaser is 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 any Purchaser or any of their respective representatives or agents in
connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase
of the Shares. The Company further represents to each Purchaser 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) Acknowledgment Regarding Purchaser’s
Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Section 3.2(f) hereof),
it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any
Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities
based on securities issued by the Company or to hold the Shares for any specified term; (ii) past or future open market or other transactions
by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the
closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded
securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party,
directly or indirectly, presently may have a “short” position in the shares of Common Stock, and (iv) each Purchaser shall
not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction.
The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities (in material compliance
with applicable laws) at various times during the period that the Shares are outstanding, and (z) such hedging activities (if any) could
reduce the value of the existing shareholders’ equity interests in the Company at and after the time that the hedging activities
are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction
Documents.
(gg) 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, other than, in the
case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement of the Shares.
Page 15
(hh) Cybersecurity; Data Privacy.
(i)(x) There has been no material security breach or other material 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 (y) the Company and the Subsidiaries have not been notified of, and have no knowledge of any event or condition
that would reasonably be expected to result in, any material security breach or other material 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, reasonably be expected to 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; (iv) the Company
and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices; and (v)
neither the Company nor any Subsidiary has received any written notice of, and there is no pending or, to the Company’s knowledge,
threatened Action alleging, any violation of any data privacy or data protection law by the Company or any Subsidiary, except as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ii) Share
Option Plans. Each share option granted by the Company under the Company’s equity incentive plan disclosed in the SEC Reports
was granted (i) in accordance with the terms of the Company’s equity incentive plan and (ii) with an exercise price at least equal
to the fair market value of the shares of Common Stock on the date such share option would be considered granted under GAAP and applicable
law. No share option granted under the Company’s equity incentive 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, share options prior to, or otherwise knowingly coordinate
the grant of share options with, the release or other public announcement of material information regarding the Company or its Subsidiaries
or their financial results or prospects.
(jj) 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 (i) currently subject to or the target of any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of State, the United Nations Security Council,
the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”),
or (ii) located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation,
Cuba, Iran, North Korea, Russia, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea
region of Ukraine and the non-government controlled areas of Zaporizhzhia and Kherson (each, a “Sanctioned Country”).
The Company will not, directly or indirectly, use the proceeds of the transactions contemplated hereby, or lend, contribute or otherwise
make available such proceeds to any Subsidiary, joint venture partner or other Person, to fund any activities of or business with any
Person, or in any Sanctioned Country, that, at the time of such funding, is the subject or target of Sanctions, or in any other manner
that will result in a violation by any Person of Sanctions. For the past five years, the Company and its Subsidiaries have not knowingly
engaged in and are not now knowingly engaged in any dealings or transactions with any Person that at the time of the dealing or transaction
is or was the subject or target of Sanctions or with any Sanctioned Country.
(kk) [Reserved].
Page 16
(ll) 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.
(mm) 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.
(nn) Other Covered Persons.
Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered Person) that has been or will be
paid (directly or indirectly) remuneration for solicitation of the Purchasers in connection with the sale of any Shares.
(oo) Private
Placement. Assuming the accuracy of the Purchasers’ 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 Purchasers as contemplated hereby.
(pp) No General Solicitation.
Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Shares by any form of general solicitation
or general advertising. The Company has offered the Shares for sale only to each Purchaser as an “accredited investor” within
the meaning of Rule 501 under the Securities Act.
(qq) No Disqualification Events.
With respect to the Shares to be offered and sold hereunder in reliance on Rule 506 under the Securities Act, none of the Company, any
of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering
hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of
voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity
at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications
described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification
Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is
subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e),
and has furnished to each Purchaser a copy of any disclosures provided thereunder.
(rr) Notice of Disqualification
Events. The Company will notify the Purchasers in writing, prior to the Closing Date of (i) any Disqualification Event relating to
any Issuer Covered Person and (ii) any event that would, with the passage of time, reasonably be expected to become a Disqualification
Event relating to any Issuer Covered Person, in each case of which it is aware.
(ss) [Reserved].
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(tt) ERISA. The Company and
each Subsidiary are in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”);
no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA)
for which the Company or any Subsidiary would have any liability; neither the Company nor any Subsidiary has incurred or expects to incur
any material liability under Title IV of ERISA or Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended (the “Code”);
and each pension plan for which the Company or any Subsidiary would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified, and nothing has occurred, whether by action or failure to act, which would cause the loss of such
qualification, except, in each case, as would not reasonably be expected to have a Material Adverse Effect.
(uu) XBRL. The interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the SEC Reports fairly presents the information
called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(vv) Non-GAAP Financial Measures.
All disclosures contained in the SEC Reports regarding “non-GAAP financial measures” (as such term is defined by the rules
and regulations of the Commission) comply in all material respects with Regulation G under the Exchange Act and Item 10 of Regulation
S-K under the Securities Act, to the extent applicable.
(ww) No Rated Debt or Preferred
Securities. There are no debt securities or preferred stock issued or guaranteed by the Company or any Subsidiary that are rated by
a “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act.
(xx) Dividend
Restrictions. Except as disclosed in the SEC Reports, no Subsidiary is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on such Subsidiary’s capital stock or other equity interests, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such Subsidiary’s properties or assets to the Company or any other Subsidiary.
(yy) Margin Rules. Neither
the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by the Company will violate Regulation T, U
or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(zz) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in
the SEC Reports has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(aaa) Statistical and Market-Related
Data. The statistical and market-related data included in the SEC Reports are based on or derived from sources that the Company reasonably
believes to be reliable and accurate in all material respects and, to the extent required, the Company has obtained the written consent
to the use of such data from such sources.
(bbb) Reserve Engineer. MKM
Engineering, whose reports appear or are incorporated by reference in the SEC Reports, was, as of the date of such report, and is, as
of the date hereof, an independent petroleum engineer with respect to the Company and its subsidiaries.
Page 18
Section 3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, 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 such representation
or warranty shall be accurate as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or 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 such
Purchaser 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 such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, 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) Understandings
or Arrangements. Such Purchaser is acquiring the Shares as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Shares (this representation and warranty
not limiting such Purchaser’s right to sell the Shares pursuant to the Registration Statement or otherwise in compliance with applicable
federal and state securities laws). Such Purchaser 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 the Shares hereunder in the ordinary course
of its business. Such Purchaser is acquiring such Shares as principal for his, her or 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 such Purchaser’s right
to sell such Shares pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws).
(c) Purchaser
Status. At the time such Purchaser was offered the Shares, it was, and as of the date hereof it is, 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) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Shares and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Shares and
the merits and risks of investing in the Shares; (ii) access to information about the Company and its financial condition, results of
operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement
Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Shares nor
is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation
as to the Company or the quality of the Shares and the Placement Agent and any Affiliate may have acquired non-public information with
respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Shares to such Purchaser,
neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
Page 19
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, 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 such Purchaser 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. Notwithstanding the foregoing, (A) in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets,
the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the
investment decision to purchase the Shares covered by this Agreement and (B) in the case of a Purchaser that has implemented internal
information barriers pursuant to information controls policy to “wall-off” certain trading personnel, the representations
set forth above shall only apply to such walled-off trading personnel. Other than to other Persons party to this Agreement or to such
Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees,
agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction
(including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement
to borrow, identification of the availability of, and/or securing of, securities of the Company in order for such Purchaser (or its broker
or other financial representative) to effect Short Sales or similar transactions in the future.
(g) General
Solicitation. Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice or other communication
regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar
or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
(h) No
Disqualification Events. With respect to the Shares to be offered and sold hereunder in reliance on Rule 506 under the Securities
Act, such Purchaser at the time of sale is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i)
to (viii) under the Securities Act, except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3).
(i) Ownership.
Such Purchaser does not, prior to the execution of this Agreement, own in excess of 5% of the outstanding Common Stock of the Company.
The Company acknowledges and agrees that the representations
contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations
and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other
document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated
hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty,
or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
Page 20
ARTICLE
IV.
OTHER AGREEMENTS OF THE PARTIES
Section 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 any such Shares
other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection
with a pledge as contemplated in Section 4.1(c), 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 (other than pursuant to an effective Registration Statement or Rule 144), 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 a Purchaser under this Agreement and the Registration Rights Agreement.
(b) The
Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on the Shares in substantially the following
form:
THIS SECURITY HAS 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. THIS SECURITY 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 SUCH SECURITIES.
(c) The
Company acknowledges and agrees that a Purchaser 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 who agrees to be bound by the provisions of this Agreement and, if required under
the terms of such arrangement, such Purchaser may transfer pledged or secured any of the 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 Purchaser’s
expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of any of the Shares may reasonably
request in connection with a pledge or transfer of such Shares, including, if the Shares are subject to registration pursuant to the Registration
Rights Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of selling Holders (as defined in the Registration Rights Agreement)
thereunder.
Page 21
(d) Certificates
(or account statements from the Transfer Agent) evidencing the Shares shall not contain any legend (including the legend set forth in
Section 4.1(b) hereof): (i) while a registration statement covering the resale of such security is effective under the Securities Act,
or (ii) following any sale of such Shares pursuant to Rule 144, or (iii) if such Shares are eligible for sale under Rule 144, 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 Commission), subject in the case of clauses (ii), (iii) and (iv) to receipt from the Purchaser by the Company
and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent
in connection with such request. The Company shall, or shall cause its counsel to, issue a legal opinion to the Transfer Agent or a Purchaser
promptly if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by such Purchaser, respectively,
in each case subject to receipt from the Purchaser of customary representations and other documentation reasonably acceptable to the Company.
If Shares may be sold under Rule 144 or if such legend is not otherwise required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the Commission) then such Shares shall be issued free of all legends,
subject to receipt from Purchaser of customary representations and other documentation reasonably acceptable to the Company. The Company
agrees that following such time as such legend is no longer required under this Section 4.1(d), the Company will, no later than two (2)
Trading Days following the receipt from Purchaser of customary representations and other documentation reasonably acceptable to the Company
and delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Shares issued with a restrictive legend
(such date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate (or account
statement from the Transfer Agent) representing such shares that is free from all restrictive and other legends. The Company may not make
any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section
4. Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to each applicable Purchaser by crediting the
account of such Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser.
(e) In
addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Shares (based on the VWAP of the shares of Common Stock on the date such Shares are submitted
to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(d), $10 per Trading Day (increasing
to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date
until such certificate is delivered without a legend; provided that (1) such liquidated damages shall not begin to accrue until the second
(2nd) Trading Day after the Legend Removal Date and (2) the aggregate liquidated damages payable under this clause (i) shall not exceed
the aggregate value (based on the VWAP referenced above) of the Shares so submitted for legend removal and (ii) if the Company fails to
(a) issue and deliver (or cause to be delivered) to a Purchaser by the Legend Removal Date a certificate (or account statement from the
Transfer Agent) representing the Shares so delivered to the Company by such Purchaser that is free from all restrictive and other legends
and (b) if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number
of shares of Common Stock equal to all or any portion of the number of shares of Common Stock, that such Purchaser anticipated receiving
from the Company without any restrictive legend, then an amount equal to the excess of such Purchaser’s total purchase price (including
brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions
and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Shares that the
Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the lowest closing sale price of the shares
of Common Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable
Shares (as the case may be) and ending on the date of such delivery and payment under this Section 4.1(e).
Page 22
(f) Each
Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Shares pursuant
to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption
therefrom, and that if Shares are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution
set forth therein, and acknowledges that 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; provided that each Purchaser shall provide
customary letters of representation reasonably acceptable to the Company in connection with this section 4.1(f).
Section 4.2 Furnishing
of Information.
(a) Until
the earliest of the (i) the first anniversary of the Closing Date, and (ii) the time that the Purchasers no longer own any of the Shares,
the Company covenants 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.
(b) At
any time during the period commencing from the date hereof and ending at such time that all of the Shares may be sold without the requirement
for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company
(i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer
described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule
144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the
Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction
of its ability to sell the Shares, an amount in cash equal to one percent (1.0%) of the aggregate Subscription Amount with respect to
the Shares that have not previously been sold, on the day of a Public Information Failure and on every thirtieth (30th) day (pro rated
for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured, (b)
such time that such public information is no longer required for the Purchasers to transfer the Shares pursuant to Rule 144 and (c) such
time that the Shares may be sold pursuant to an effective Registration Statement. If a Purchaser is notified by the Company of a Public
Information Failure, then such Purchaser agrees that it shall not sell such Shares until the event of failure giving rise to the Public
Information Failure Payments is cured, unless such sale is made pursuant to an exemption from registration other than pursuant to Rule
144, provided that no such Public Information Failure Payments shall be made on such Shares sold pursuant to such exemptions. The payments
to which the Purchasers shall be entitled pursuant to this Section 4.2(b) are referred to herein as “Public Information Failure
Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during
which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise
to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely
manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until
paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and
such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief. Notwithstanding anything to the contrary herein or an any Transaction Document, during
any time that the Company is required to pay liquidated damages pursuant to any other Transaction Documents, the Company shall not be
required to make any Public Information Failure Payments hereunder until such time as the Company is no longer obligated to pay such other
liquidated damages (and only to the extent that a Public Information Failure is then continuing).
Page 23
Section 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.
Section 4.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time issue a press release disclosing the material terms
of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto,
with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents
to the Purchasers, as of the Closing, that it shall have publicly disclosed all material, non-public information delivered to any of the
Purchasers 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 Company understands and confirms that each Purchaser shall be relying
on the foregoing covenant in effecting transactions in securities of the Company. The Company and each Purchaser shall consult with each
other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser
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 any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company,
which consent shall not unreasonably be withheld or delayed, except that 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 any Purchaser, or include the name of any Purchaser in any filing with the Commission
or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, 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 Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the
Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
Section 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 any
Purchaser 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 any Purchaser 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 Company and the Purchasers.
Section 4.6 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its
behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed
with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any of its Subsidiaries, or
any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public information to a Purchaser
without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality
to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to
the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the
basis of, such material, non-public information, provided that such Purchaser shall remain subject to applicable law. To the extent that
any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company
or any Subsidiaries, the Company shall simultaneously file such material non-public information with the Commission pursuant to a Report
on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company.
Page 24
Section 4.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Shares hereunder for the repayment of indebtedness,
working capital and other general corporate purposes and shall not use such proceeds: (a) for the redemption of any Common Stock or Common
Stock Equivalents, (b) for the settlement of any outstanding litigation or (c) in violation of FCPA or OFAC regulations.
Section 4.8 Indemnification
of Purchaser. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (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), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners
or employees (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 such controlling persons (each, a “Purchaser Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court
costs and reasonable and documented attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur
as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in
this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any
of them or their respective Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser Party, with respect
to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a material breach of such Purchaser
Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser
Party may have with any such shareholder or any violations by such Purchaser Party of state or federal securities laws or any conduct
by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action
shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party
shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own
choosing reasonably acceptable to such Purchaser Party. Any Purchaser Party shall have the right to engage separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party
except to the extent that (x) the engagement thereof has been specifically authorized by the Company in writing, (y) the Company has failed
after a reasonable period of time to assume such defense and to engage counsel or (z) in such action there is, in the reasonable opinion
of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in
which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company
will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants
or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this
Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills
are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of
any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law. The Company will
not, except with the consent of any Purchaser Party, which consent shall not be unreasonably withheld, conditioned or delayed, consent
to entry of any judgment or enter into any settlement with respect to any pending proceeding in respect to which a Purchaser Party is
a party and indemnity could have been sought hereunder by such Purchaser Party, unless such settlement or judgment (i) imposes no liability
or obligation on the Purchaser Party, (ii) includes an unconditional release from the party bringing such indemnified claims of such Purchaser
Party from all liability in respect of or arising out of such claims or proceedings or claims or proceedings that are the subject matter
of such proceeding and (iii) does not include any admission of fault, culpability, wrongdoing or malfeasance by or on behalf of the Purchaser
Party.
Page 25
Section 4.9 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available
at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue
Shares pursuant to this Agreement.
Section 4.10 Listing
of Common Stock. The Company hereby agrees to use commercially 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 use commercially reasonable efforts to 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, without limitation,
by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic
transfer.
Section 4.11 Subsequent
Equity Sales.
(a) From
the date hereof until 30 days after the date on which a Registration Statement registering for resale all of the Shares is declared effective
by the Commission (such applicable period, the “Restricted Period”), neither the Company nor any Subsidiary shall (i)
issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents
or (ii) file any registration statement or any amendment or supplement thereto, in each case other than (A) as contemplated pursuant to
the Registration Rights Agreement, (B) a registration statement on Form S-8, (C) any post-effective amendment or prospectus supplement
to any registration statement effective on the date hereof, to the extent required to keep such registration statement current or to satisfy
obligations of the Company in effect on the date hereof and disclosed in the SEC Reports, or (D) in connection with an Exempt Issuance.
(b) During
the Restricted Period, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company
or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable
Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt
or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of
Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the
trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities,
or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of
such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of
the Company or the market for the shares of Common Stock (other than pursuant to customary anti-dilution provisions) or (ii) enters into,
or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue
securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any
such issuance, which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an
Exempt Issuance.
Section 4.12 Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the
Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Shares or otherwise.
Page 26
Section 4.13 Certain
Transactions and Confidentiality. Each Purchaser 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 initial press release as described in Section 4.4. Each Purchaser, severally and not jointly
with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by
the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the
existence and terms of this transaction. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the
contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that
it will engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted
or prohibited by this Agreement from effecting any transactions in any securities of the Company in accordance with applicable securities
laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities
of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding
the foregoing, (A) in the case of a Purchaser is a multi-managed investment vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed
by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement and (B) in the case of a Purchaser
that has implemented internal information barriers pursuant to information controls policy to “wall-off” certain trading personnel,
the representations set forth above shall only apply to such walled-off trading personnel.
Section 4.14 Form
D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the offering of the Shares as required under
Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. 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 Purchasers 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 any Purchaser.
ARTICLE
V.
MISCELLANEOUS
Section 5.1 Termination.
This Agreement may be terminated by the Company or by any Purchaser, as to such Purchaser’s obligations hereunder only, and without
any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the
Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party hereto to sue for any breach by any other party (or parties) hereto.
Section 5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party hereto 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,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other
taxes and duties levied in connection with the delivery of any Shares to the Purchasers.
Section 5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of
the parties hereto 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 such parties acknowledge have been merged into such documents, exhibits and schedules.
Section 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 facsimile
at the facsimile number or 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 facsimile at the facsimile number or 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 (2nd)
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. Any notice to the Placement Agent shall be delivered to Northland Securities, Inc., 150 South Fifth Street,
Suite 3300, Minneapolis, Minnesota 55402, Attention: David Levine, Email: [***], with a copy (which shall not constitute notice) to Faegre
Drinker Biddle & Reath LLP, 2200 Wells Fargo Center, 90 S. Seventh Street, Minneapolis, Minnesota 55402, Attention: Jonathan Zimmerman,
Email: [***].
Page 27
Section 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 Company and Purchasers which purchased at least 50.1% in interest of the Shares based on the initial
Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against
whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and
materially and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group
of Purchasers) shall also be required. 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 proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations
of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of
such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and
holder of Shares and the Company.
Section 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.
Section 5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser 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 “Purchasers” (other than in respect of a transfer
pursuant to an effective registration statement).
Section 5.8 No
Third-Party Beneficiaries. The Placement Agent shall be the third-party beneficiary of the representations and warranties of
the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the
benefit of the parties hereto 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, except as otherwise set forth in Section 4.8 and this Section 5.8.
Section 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 hereto agrees that all Proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto 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 City of New York. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting in the City of New York, 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 hereto 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 hereto shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition
to the obligations of the Company under Section 4.8, 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.
Page 28
Section 5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Shares for a period of five (5)
years from the Closing.
Section 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 hereto and delivered to the other party hereto, it being understood
that the parties hereto need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or
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 facsimile or “.pdf” signature page
was an original thereof.
Section 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 hereto 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.
Section 5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of)
any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or
withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole
or in part without prejudice to its future actions and rights.
Section 5.14 Replacement
of Shares. If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Shares.
Section 5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties hereto 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. Each party hereto agrees that it shall not have a remedy of punitive or consequential damages against the other and
hereby waives any right or claim to punitive or consequential damages it may now have or may arise in the future.
Page 29
Section 5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document
or a Purchaser 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,
without limitation, 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.
Section 5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
Section 5.18 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts
have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
Section 5.19 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.
Section 5.20 Construction.
The parties hereto agree that each of them and/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 share splits,
share dividends, share combinations and other similar transactions of the shares of Common Stock that occur after the date of this Agreement.
Section 5.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO,
THE PARTIES HERETO 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]
Page 30
IN WITNESS WHEREOF, the parties hereto have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
NEW ERA ENERGY & DIGITAL, INC.
Address for Notice:
200 N. Loraine Street, Suite 1324, Midland, Texas 79701
By:
Attention: Charles Nelson
Name:
E-mail: [***]
Title:
With a copy to (which shall not constitute notice):
Vinson & Elkins L.L.P., 2001 Ross Avenue, Suite 3900, Dallas, Texas 75201, Attention: Katherine Terrell Frank, Email: [***]
[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
Page 31
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
IN WITNESS WHEREOF, the undersigned has caused
this Securities Purchase Agreement to be duly executed by its authorized signatory as of the date first indicated above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser:
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
Subscription Amount:
$
Shares:
EIN Number:
Page 32
Schedule 3.1(g)
Capitalization
Following the Closing, the Company will have 140,564,269
shares of Common Stock outstanding.
Page 33
Exhibit A
Form of Registration Rights Agreement
Page 34
EX-10.2 — REGISTRATION RIGHTS AGREEMENT, DATED OCTOBER 28, 2026, BY AND AMONG THE COMPANY AND THE INVESTORS NAMED THEREIN
EX-10.2
Filename: ea031006601ex10-2.htm · Sequence: 3
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of October 28, 2026, between New Era Energy & Digital, Inc., a Nevada
corporation (the “Company”), and each of the several purchasers signatory hereto (each such purchaser, a “Purchaser”
and, collectively, the “Purchasers”).
This Agreement is made pursuant
to the Securities Purchase Agreement, dated as of the date hereof, between the Company and each Purchaser (the “Purchase Agreement”).
The Company and each Purchaser
hereby agrees as follows:
1. Definitions.
Capitalized terms used
and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement.
As used in this Agreement, the following terms shall have the following meanings:
“Advice”
shall have the meaning set forth in Section 6(c).
“Effectiveness
Date” means, with respect to the Initial Registration Statement required to be filed hereunder, the 45th
calendar day following the Filing Date for such Initial Registration Statement (or, in the event of a “full review” by the
Securities and Exchange Commission (the “Commission”), the 90th calendar
day following the Filing Date for such Initial Registration Statement) and with respect to any additional Registration Statements which
may be required pursuant to Section 2(c) or Section 3(c), the 45th 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 90th 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 Date 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, provided, further, 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; provided, further, that if the Commission is
closed for operations due to a government shutdown, the Effectiveness Date as to such Registration Statement shall be extended by the
same amount of days that the Commission remains closed for operations.
“Effectiveness
Period” shall have the meaning set forth in Section 2(a).
“Event”
shall have the meaning set forth in Section 2(d).
“Event
Date” shall have the meaning set forth in Section 2(d).
“Filing
Date” means, with respect to the Initial Registration Statement required hereunder, the fifteenth business day after the date
hereof, and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the
earliest reasonably practical date following the date on which the Company is permitted by SEC Guidance to file such additional Registration
Statement related to the Registrable Securities; provided, however, that if the Filing Date falls on a day that is not a Trading Day,
then the Filing Date shall be the next succeeding Trading Day; provided, further, that if the Commission is closed for operations due
to a government shutdown, the Filing Date shall be extended by the same number of days that the Commission remains closed for operations.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified
Party” shall have the meaning set forth in Section 5(c).
“Indemnifying
Party” shall have the meaning set forth in Section 5(c).
“Initial
Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses”
shall have the meaning set forth in Section 5(a).
“Plan of
Distribution” shall have the meaning set forth in Section 2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, 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 and (b) any securities issued or then issuable upon any stock
split, stock dividend or other distribution, recapitalization or similar event with respect to the foregoing; 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) if (x) 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, (y) such Registrable Securities have been previously
sold in accordance with Rule 144, or (z) such Registrable Securities have become eligible for resale without volume or manner-of-sale
restrictions pursuant to Rule 144 (assuming for this purpose that the Company is then in compliance with the current public information
requirements of Rule 144(c) and Rule 144(i)(2)), as reasonably determined by the Company upon the advice of counsel.
“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.
“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.
“Selling
shareholder Questionnaire” shall have the meaning set forth in Section 3(a).
“Shares”
mean the shares of Common Stock issued or issuable to each Purchaser pursuant to the Purchase Agreement.
Page 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 Form S-1 or on another appropriate
form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least 85% in
interest of the Holders and except if otherwise required pursuant to written comments received from the Commission upon a review of such
Registration Statement) substantially the “Plan of Distribution” attached hereto as Annex A. Subject to the
terms of this Agreement, the Company shall use its commercially reasonable efforts to cause a Registration Statement filed under this
Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as reasonably
possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercially reasonable
efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities
covered by such Registration Statement no longer constitute Registrable Securities (the “Effectiveness Period”). The
Company shall request acceleration of effectiveness of a Registration Statement no later than 5:00 p.m. (New York City time) on a Trading
Day. The Company shall by 4:00 p.m. (New York City 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 Commission informs the Company that all of the Registrable Securities cannot,
as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company
agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration
Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission,
on Form S-3 (or, if Form S-3 is not then available, Form S-1) or such other form available to register for resale the Registrable Securities
as a secondary offering, subject to the provisions of Section 2(e); provided, however, that prior to filing such amendment,
the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable
Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding
any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if 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 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 or otherwise directed by the staff of the Commission, 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 represented by Shares (applied, in the case that some Shares may be registered, to the
Holders) on a pro rata basis based on the total number of unregistered Shares held by such Holders.
In the event of a cutback hereunder,
the Company shall give the Holder at least one (1) Trading Days prior written notice along with the calculations as to such Holder’s
allotment, and the Company’s obligations. In the event the Company amends the Initial Registration Statement in accordance with
the foregoing, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as reasonably possible
after the time allowed by 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, if Form S-3 is not then available, Form S-1) 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.
Page 3
(d) If: (i) the
Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without
affording the Holders the opportunity to review and comment on the same as required by Section 3(a) herein or the Company subsequently
withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause (i) as of the Filing
Date), or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with
Rule 461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified
(orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or
will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, the Company fails to file a pre-effective
amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement as soon as reasonably
practicable under the circumstances after the receipt of comments by or notice from the Commission that such amendment is required in
order for such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable
Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement (provided that,
if the Registration Statement does not allow for the resale of Registrable Securities at prevailing market prices (i.e., only allows for
fixed price sales), the Company shall have been deemed to have not satisfied this clause and any such event or circumstance shall thus
constitute an “Event” as defined below) or (v) after the effective date of a Registration Statement, such Registration Statement
ceases for any reason to remain continuously effective as to all Registrable Securities included in such Registration Statement, or the
Holders are suspended from or otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities (including
due to an Allowed Delay), in either case, for more than thirty (30) consecutive calendar days (provided that if the Company is required
to file a post-effective amendment to a Registration Statement to incorporate the Company’s quarterly or annual reports or audited
financial statements on Forms 10-Q and 10-K, such period may be extended for no more than five (5) consecutive calendar days in the case
of a Form 10-Q and fifteen (15) consecutive calendar days in the case of a Form 10-K (the “Grace Period”)) or more than an
aggregate of sixty (60) calendar days (which need not be consecutive calendar days) during any 12-month period (any such failure or breach
being referred to as an “Event”, and for purposes of clauses (i) and (iv), the date on which such Event occurs, and
for purpose of clause (ii) the date on which such three (3) Trading Day period is exceeded, and for purpose of clause (v) the date on
which such thirty (30) or sixty (60) calendar day period, plus any Grace Period, as applicable, is exceeded being referred to as “Event
Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date
and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the earlier
of (1) the date that the applicable Event is cured and (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without
manner of sale or volume restrictions, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as
a penalty, equal to the product of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement
for any unregistered Registrable Securities then held by such Holder. The parties agree that (1) notwithstanding anything to the contrary
herein or in the Purchase Agreement, no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness
Period (it being understood that this sentence shall not relieve the Company of any Liquidated Damages accruing prior to the expiration
of the Effectiveness Period) and the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be 6.0% of the
aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement, and (2) in no event shall the Company be liable
in any 30-day period for Liquidated Damages under this Agreement in excess of 1.0% of the aggregate Subscription Amount paid by the Holders
pursuant to the Purchase Agreement; provided, that the Company shall not be required to make any payments pursuant to this Section 2(d)
with respect to any Registrable Securities the Company is unable to register due to limits imposed by the Commission’s interpretation
of Rule 415 under the Securities Act as contemplated by Section 2(b) or in respect of any Permitted Suspension Period (as provided in
Section 3(j)). If the Company fails to pay any partial liquidated damages pursuant to this Section in full within seven days after the
date payable, the Company will pay interest thereon at a rate of 12% per annum (or such lesser maximum amount that is permitted to be
paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all
such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro rata basis
for any portion of a month prior to the cure of an Event.
Page 4
(e) Notwithstanding
anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any
Underwriter without the prior written consent of such Holder; provided that, if the Commission staff requests that a Holder or affiliate
thereof be identified as a statutory underwriter in a Registration Statement, then such Holder will have the option, in its sole and absolute
discretion, to either (i) have the opportunity to withdraw its Registrable Securities from the Registration Statement upon its prompt
written request to the Company, in which case the Company’s obligation to register such Holder’s Registrable Securities shall
be deemed satisfied in full, or (ii) be included as such (or have its affiliate included as such) in the Registration Statement.
(f) For not more
than thirty (30) consecutive calendar days or for a total of not more than sixty (60) calendar days in any twelve (12) month period, the
Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Section 2 in the event that
the Company determines in good faith that such suspension is necessary to (A) delay the disclosure of material non-public information
concerning the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of
the Company or (B) amend or supplement the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus
shall not include 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 the case of the Prospectus in light of the circumstances under which they were made, not misleading (an
“Allowed Delay”); provided, that the Company shall promptly (a) notify each Holder in writing of the commencement of
and the reasons for an Allowed Delay, but shall not (without the prior written consent of a Holder) disclose to such Holder any material
non-public information giving rise to an Allowed Delay, (b) advise the Holders in writing to cease all sales under the Registration Statement
until the end of the Allowed Delay and (c) use commercially reasonable efforts to terminate an Allowed Delay as promptly as practicable.
3. Registration Procedures.
In connection
with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than
one (1) Trading Day prior to the filing of the Initial Registration Statement and not less than three (3) Trading Days prior to the filing
of each additional Registration Statement and not less than one (1) Trading Day prior to the filing of any related Prospectus or any amendment
or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), 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 to be 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 the Holders of a majority of the Registrable Securities
shall reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than three (3) Trading
Days after the Holders have been so furnished copies of a Registration Statement or one (1) 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 to this Agreement as Annex B (a “Selling shareholder Questionnaire”) on a
date that is not later than the earlier of (i) three (3) Trading Days prior to the Filing Date or (ii) the end of the third (3rd)
Trading Day following the date on which such Holder receives draft materials in accordance with this Section. In addition to the Selling
shareholder Questionnaire, each Holder shall furnish such other information as shall be reasonably required to effect the registration
of such Registrable Securities, and shall execute such documents in connection with such registration as the Company may reasonably request.
Page 5
(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, and
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 provisions of the Securities Act and the Exchange Act applicable to the Company with respect to the
disposition by the Holders 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, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.
(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 (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in
writing no later than one (1) 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,
Page 6
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 the case
of the Prospectus, 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, that 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 its 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 reasonably practicable moment.
(f) Furnish to each
Holder, at such Holder’s written request, 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.
(g) Subject to the
terms of this Agreement (including Section 3(j)), consent 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) or following any suspension pursuant to Section
2(f) or Section 3(j).
(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.
Page 7
(i) If requested
by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates, or book-entry notification,
as applicable, representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates
or book-entry notification shall be free, to the extent permitted by the Purchase 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.
(j) Upon the occurrence of any event contemplated by Section 3(d),
if required to do so, as promptly as reasonably possible, as determined by the Company 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 so suspend
use of such Prospectus. The Company shall be entitled to exercise its right under this Section 3(j) to suspend the availability of a Registration
Statement and Prospectus without payment of partial liquidated damages otherwise required pursuant to Section 2(d) for periods not to
exceed an aggregate of 60 calendar days (which need not be consecutive days) in any 12-month period (“Permitted Suspension Periods”).
The Company shall use commercially reasonable efforts to minimize the duration and frequency of any such suspension, and shall not exercise
its right to suspend sales for the purpose of limiting or restricting any Holder’s ability to sell Registrable Securities for competitive
or other non-disclosure-related reasons.
(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, without limitation, 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) Use its commercially
reasonable efforts to obtain and thereafter maintain eligibility for use of Form S-3 (or any successor form thereto) for the registration
of the resale of the 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. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable
Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any liquidated
damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise occur solely because of
such delay shall be suspended as to such Holder only, until such information is delivered to the Company.
Page 8
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 include, without limitation, (i) all registration and filing fees (including, without limitation, 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 shares of Common Stock are 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 broker, underwriting or similar commissions
of any Holder, transfer taxes applicable to the sale of Registrable Securities or, except to the extent expressly provided for in the
Transaction Documents, any legal fees or other costs of the Holders.
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 shares 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, shareholders, 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,
without limitation, reasonable and documented 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 or violations are based solely upon information regarding such Holder furnished in
writing to the Company by any Holder expressly for use therein, or to the extent that such information relates to any Holder or any 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 each 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(c). 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(f).
Page 9
(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 (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), 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 shareholder
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 each 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.
(c) Conduct of
Indemnification Proceedings. 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. The Indemnified Party shall provide the Indemnifying Party with regular and timely progress updates with respect
to any Proceedings.
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 for all Indemnified Parties 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.
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) shall be paid
to the Indemnified Party, as incurred, within thirty (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.
Page 10
(d) Contribution.
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, severally and not jointly with the other Indemnifying Parties, 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 and documented 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 was available to such party in accordance with its terms.
The parties hereto
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.
The indemnity and
contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may otherwise have to
the Indemnified Parties.
6. Miscellaneous.
(a) Remedies. The
failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party to exercise such right or
remedy, shall not operate as a waiver thereof. In the event of a breach by the Company or by a Holder of any of its 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. Except with the consent of the majority of the Holders of Registrable
Securities, 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, except for securities required to be included
pursuant to registration rights in effect on the date hereof and disclosed in the SEC Reports. The Company shall not file any other registration
statements, other than with respect to an Exempt Issuance (as defined in the Purchase Agreement), until the earlier of the date that all
Registrable Securities are (i) registered pursuant to a Registration Statement that is declared effective by the Commission or (ii) eligible
for resale by non-affiliates without volume or manner of sale restrictions under Rule 144; 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 prospectus supplements relating
to any offering of securities of the Company pursuant to any registration statement filed by the Company prior to the date of this Agreement,
so long as no new securities are registered on any such existing registration statements.
Page 11
(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) through (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. Subject to Section 3(j), the Company will use its
commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is reasonably practicable, subject
to the first sentence of Section 3(j). The Company agrees and acknowledges that periods during which the Holder is required to discontinue
the disposition of the Registrable Securities hereunder shall be subject to the provisions of Section 2(d).
(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 50.1% 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 to this Agreement
who continue to hold any of the Registrable Securities.
(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 Purchase 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 solely in the manner and to the Persons as permitted under Section 5.7 of the Purchase Agreement.
(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; provided, however, that the entering
into of any other registration rights agreement, the granting of any other registration rights or the filing of any other registration
statement, in each case after the date hereof, shall not be deemed to impair the rights granted to the Holders in this Agreement or otherwise
conflict with the provisions hereof. Except as set forth in the SEC Reports, 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 parties, it
being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of
2000 (e.g., www.docusign.com), 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 facsimile or “.pdf” signature page were an original thereof.
Page 12
(i) Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of this Agreement, and all matters arising hereunder
and in connection herewith, shall be determined in accordance with Sections 5.9 and 5.21 of the Purchase 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 hereto 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) Headings. The
headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(m) Interpretation.
When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of
this Agreement unless the context requires otherwise. The words “date hereof’ when used in this Agreement shall refer to the
date of this Agreement. The terms “or,” “any” and “either” are not exclusive. The word “extent”
in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean
simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.”
All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless
otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or
referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time
to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case
of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.
Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to, and all payments hereunder
shall be made in, the lawful money of the United States. References to a Person are also to its successors and permitted assigns. When
calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Agreement,
the date that is the reference date in calculating such period shall be excluded (and, unless otherwise required by law, if the last day
of such period is not a Trading Day, the period in question shall end on the next succeeding Trading Day).
(n) 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, and the Company acknowledges that the Holders are not acting in concert
or as a group in connection with the transactions contemplated by this Agreement, 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 without limitation
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. 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.
(o) Termination.
This Agreement shall be effective as of the Closing, and if the Closing has not occurred on or prior to fifth (5th) Trading Day following
the date of the Purchase Agreement, unless otherwise mutually agreed, then this Agreement shall be null and void.
********************
(Signature Pages Follow)
Page 13
IN WITNESS WHEREOF, the parties
have executed this Registration Rights Agreement as of the date first written above.
NEW ERA ENERGY & DIGITAL, INC.
By:
/s/ Charles Nelson
Name:
Charles Nelson
Title:
Chief Executive Officer
[SIGNATURE
PAGE OF HOLDERS TO FOLLOW]
Page 14
[SIGNATURE
PAGE OF HOLDERS TO RRA]
Name
of Holder: Brookdale Global Opportunity Fund
Signature
of Authorized Signatory of Holder: /s/ Wilson McCloy
Name
of Authorized Signatory: Wilson McCloy
Title
of Authorized Signatory: Authorized Trader of Weiss Asset Management LP, as Investment Manager of Brookdale Global Opportunity Fund
Name
of Holder: Davidson Kempner Arbitrage, Equities and Relative Value LP
Signature
of Authorized Signatory of Holder: /s/ Gabriel T.
Schwartz
Name
of Authorized Signatory: Gabriel T. Schwartz
Title
of Authorized Signatory: Co-Deputy Executive Managing Member
Name
of Holder: Brookdale International Partners, L.P.
Signature
of Authorized Signatory of Holder: /s/ Wilson McCloy
Name
of Authorized Signatory: Wilson McCloy
Title
of Authorized Signatory: Authorized Trader of Weiss Asset Management LP, as Investment Manager of Brookdale International Partners, L.P.
Name
of Holder: Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B
Signature
of Authorized Signatory of Holder: /s/ Waqas Khatri
Name
of Authorized Signatory: Waqas Khatri
Title
of Authorized Signatory: Director
[SIGNATURE PAGES CONTINUE]
Page 15
Name of Holder: M.H. Davidson & Co.
Signature of Authorized Signatory of Holder:
/s/ Gabriel T. Schwartz
Name of Authorized Signatory: Gabriel T. Schwartz
Title of Authorized Signatory: Co-Deputy Executive
Managing Member
Name of Holder: Hood River Small Cap Growth Fund
Signature of Authorized Signatory of Holder:
/s/ Brian Smoluch
Name of Authorized Signatory: Brian Smoluch
Title of Authorized Signatory: Portfolio Manager
Name of Holder: Ghisallo Master Fund LP
Signature of Authorized Signatory of Holder:
/s/ Matthew F. Doeringer
Name of Authorized Signatory: Matthew F. Doeringer
Title of Authorized Signatory: Authorized Signatory
Page 16
Annex A
Plan of Distribution
Each Selling Shareholder (the
“Selling Shareholder”) of the securities and any of their pledgees, assignees and successors-in-interest may, from
time to time, sell 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. A Selling
Shareholder 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;
●
settlement of short sales;
●
in transactions through broker-dealers that agree with the Selling Shareholders 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;
●
a combination of any such methods of sale; or
●
any other method permitted pursuant to applicable law.
The Selling Shareholders 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.
Broker-dealers engaged by
the Selling Shareholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Shareholders (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 2121; and in the case of a principal transaction a markup or markdown in
compliance with FINRA Rule 2121.
In connection with the sale
of the securities or interests therein, the Selling Shareholders 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
Shareholders 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 Shareholders 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).
Page 17
The Selling Shareholders 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 Shareholder 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 Shareholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep the registration
statement of which this prospectus is a part effective until the earlier of (i) the date on which the securities may be resold by the
Selling Shareholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without
the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any
other rule of similar effect 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 shares of Common Stock for the applicable restricted period, as defined in Regulation M, prior to
the commencement of the distribution. In addition, the Selling Shareholders 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 shares of common
stock by the Selling Shareholders or any other person. We will make copies of this prospectus available to the Selling Shareholders 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).
Page 18
Annex B
New
Era Energy & Digital, Inc.
Selling Shareholder Notice and Questionnaire
The undersigned beneficial
owner of shares of common stock (the “Registrable Securities”) of New Era Energy & Digital, Inc., a Nevada 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 shall have the meanings ascribed thereto in the Registration Rights Agreement.
Certain legal consequences
arise from being named as a selling shareholder 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 shareholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial
owner (the “Selling Shareholder”) 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 shareholder
(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) or Control Persons:
Page 19
2. Address for Notices to Selling shareholder:
Telephone:
E-Mail:
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 shareholder.
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 Shares issued pursuant
to the Purchase Agreement.
(a) Type and Amount of other securities beneficially owned by the Selling shareholder:
Page 20
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 acknowledges
that the Securities Act and the rules and regulation promulgated thereunder may require the undersigned 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 as
long as the undersigned holds Registrable Securities (as defined in the Registration Rights Agreement). In the absence of any such notification,
the Company shall be entitled to continue to rely on the accuracy of the information in this Notice and Questionnaire.
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.
The undersigned acknowledges
the undersigned’s obligation to comply, and agrees that it will comply, with the provisions of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, particularly Regulation M, in connection with any offering of Common Stock pursuant
to the Registration Statement.
The undersigned also hereby
acknowledges and is advised of the following Compliance and Disclosure Interpretation (“CDI”) of the staff of the Division
of Corporation Finance (with respect to Securities Act Sections) regarding short selling:
“239.10 An issuer filed a Form S-3 registration
statement for a secondary offering of common stock which is not yet effective. One of the selling shareholders wanted to do a short sale
of common stock “against the box” and cover the short sale with registered shares after the effective date. The issuer was
advised that the short sale could not be made before the registration statement becomes effective, because the shares underlying the short
sale are deemed to be sold at the time such sale is made. There would, therefore, be a violation of Section 5 if the shares were effectively
sold prior to the effective date. [Nov. 26, 2008]”
The undersigned further acknowledges that the
foregoing CDI applies to the shares of Common Stock to be registered for resale on behalf of the undersigned pursuant to the Registration
Statement and to be covered by the related prospectus.
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:
Page 21
PLEASE EMAIL A .PDF COPY OF THE COMPLETED AND
EXECUTED NOTICE AND QUESTIONNAIRE TO:
New Era
Energy & Digital, Inc., 200 N. Loraine Street, Suite 1324, Midland, Texas 79701, Attention: Ted Warner with a copy (which shall
not constitute notice) to: Vinson & Elkins L.L.P., 2001 Ross Avenue, Suite 3900, Dallas, Texas 75201, Attention: Katherine
Terrell Frank
Email:
[***]
[***]
Page 22
EX-99.1 — PRESS RELEASE, DATED OCTOBER 29, 2026
EX-99.1
Filename: ea031006601ex99-1.htm · Sequence: 4
Exhibit 99.1
New Era Energy & Digital Announces
$64 Million Private Placement of Common Stock
MIDLAND, Texas,
October 29, 2026 (GLOBE NEWSWIRE) -- New Era Energy & Digital, Inc. (Nasdaq: NUAI) (“New Era” or the “Company”),
a developer of next-generation digital infrastructure and integrated power assets, today announced it has entered into a securities purchase
agreement for a private investment in public equity financing (the “PIPE”) that is expected to result in gross proceeds of
approximately $64 million. The PIPE is expected to close on October 30, 2026, subject to the satisfaction of customary closing conditions.
Pursuant to the terms
of the securities purchase agreement, at the closing of the PIPE, New Era will issue an aggregate of 23,272,727 shares of common stock
at a price of $2.75 per share.
“We executed
this capital raise in order to strengthen our financial position in a challenging market and meet our near-term financing needs, allowing
us to advance leasing negotiations for 757 MW across Phases 1 and 2 at Texas Critical Data Centers (“TCDC”),” said Charlie
Nelson, Chairman and Chief Executive Officer of New Era.
“We have key
permits in hand, Phase 1 power secured and fully funded, and a highly experienced in-house development and operations team executing on
key priorities. Following closing, we will have a strong net cash position, alongside the existing up to $200 million post-lease financing
option under our Macquarie facility. Our near-term priority is to turn these advantages into long-term leases and enduring shareholder
value.”
TCDC Phase 1 has secured
up to 207 MW of firm, contracted power under a 20-year power purchase agreement, with delivery expected in Q3 2027.
The Company intends
to use the net proceeds from the PIPE for repayment of the recent borrowings under the Macquarie facility, working capital and other general
corporate purposes. Northland Capital Markets acted as the sole placement agent for the PIPE. Vinson & Elkins LLP served as
legal counsel to the Company and Faegre Drinker Biddle & Reath LLP served as counsel to the placement agent. A.G.P./Alliance
Global Partners acted as financial advisor for the PIPE.
The securities being
issued and sold in the PIPE have not been registered under the Securities Act of 1933, as amended (the “Securities Act”).
Accordingly, these securities may not be offered or sold in the United States, except pursuant to an effective registration statement
or an applicable exemption from the registration requirements of the Securities Act. Concurrently with the execution of the securities
purchase agreement, New Era and the investors named therein entered into a registration rights agreement pursuant to which New Era has
agreed to file a registration statement with the U.S. Securities and Exchange Commission (“SEC”) registering the resale of
the shares of common stock.
This press release
shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale of these securities
in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification
under the securities laws of any such state or other jurisdiction.
About New Era Energy & Digital, Inc.
New Era Energy &
Digital is developing large-scale data centers across energy-rich U.S. markets to support AI training and inference workloads. New Era’s
flagship project, Texas Critical Data Centers, is a 493-acre site located in the Permian Basin, with anticipated capacity scaling to 1.4
GW over time. New Era’s strategy is to combine large-acreage sites with flexible power solutions, including behind-the-meter power. New
Era’s approach is a modular, phased data center deployment model, utilizing best-in-class water efficiency and self-generated power to
minimize community impact and accelerate time-to-power for hyperscale, enterprise and edge operators.
For more information,
visit: www.newerainfra.ai and follow New Era Energy & Digital on LinkedIn and X.
Forward-Looking Statements
This press release
contains “forward-looking statements.” Forward-looking statements reflect the current view about future events. When used
in this press release, the words “anticipate,” “believe,” “estimate,” “expect,” “future,”
“intend,” “plan” or the negative of these terms and similar expressions, as they relate to us or our management,
identify forward-looking statements. Such statements include, but are not limited to, statements contained in this press release relating
to our business strategy, our future operating results and liquidity and capital resources outlook. Forward-looking statements are based
on our current expectations and assumptions regarding our business, the economy and other future conditions. Because forward-looking statements
relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. Our
actual results may differ materially from those contemplated by the forward-looking statements. They are neither statements of historical
fact nor guarantees of assurance of future performance. We caution you therefore against relying on any of these forward-looking statements.
Important factors that could cause actual results to differ materially from those in the forward-looking statements include, without limitation:
our ability to construct, develop, lease and maintain our flagship project; our ability to realize the anticipated benefits of the power
purchase agreement; our ability to access adequate project financing, commercial borrowings and debt and equity capital markets to fund
our significant anticipated capital expenditures; the ability to obtain and maintain credit support to secure contractual obligations
on commercially reasonable terms or at all; the impact of supply chain disruptions, labor availability, raw materials and input commodity
costs and availability, and manufacturing and transportation; general business and economic conditions, in particular with respect to
our industry; environmental history, remediation, and associated risks; our ability to obtain and renew leases with our tenants on terms
favorable to us, and manage our growth, business, financial results and results of operations; our ability to respond to price fluctuations
and rapidly changing technology; the impact of tariffs and global trade disruptions on us and our tenants; changes in political conditions,
geopolitical turmoil, political instability, civil disturbances, and restrictive governmental actions; the degree and nature of our competition;
our failure to generate sufficient cash flows to service indebtedness; our expectations regarding the anticipated timeline of our cash,
cash equivalents and short-term investments, future financial performance and our ability to continue as a going concern; material negative
changes in the creditworthiness and the ability of our tenants to meet their contractual obligations; increases and volatility in interest
rates; increased power, labor, equipment procurement, shipping, refurbishment or construction costs; a failure of our information technology
systems, systems conversions and integrations, cybersecurity attacks or a breach of our information security systems, networks or processes;
our inability to obtain and/or maintain necessary government or other required consents or permits; changes in, or the failure or inability
to comply with, local, state, federal and applicable international laws and regulations, including related to taxation, real estate and
zoning laws, and increases in real property tax rates; the impact of any financial, accounting, legal or regulatory issues or litigation
that may affect us; our ability to maintain an effective system of disclosure controls and procedures and internal control over financial
reporting and operations; and other factors (including the risks contained in the “Risk Factors” section of our Annual Report
on Form 10-K for the fiscal year ended December 31, 2025, and in our Form 10-Q for the quarterly period ended June 30, 2026). Should one
or more of these risks or uncertainties materialize, or should the underlying assumptions prove incorrect, actual results may differ significantly
from those anticipated, believed, estimated, expected, intended or planned. Factors or events that could cause our actual results to differ
may emerge from time to time, and it is not possible for us to predict all of them. We cannot guarantee future results, levels of activity,
performance or achievements. Except as required by applicable law, including the securities laws of the United States, we do not intend
to update any of the forward-looking statements to conform these statements to actual results.
For investor inquiries, please contact:
OG Advisory Group
Lincoln Tan
nuai@orangegroupadvisors.com
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