Form 8-K
8-K — Soluna Holdings, Inc
Accession: 0001493152-26-015140
Filed: 2026-04-03
Period: 2026-04-01
CIK: 0000064463
SIC: 6199 (FINANCE SERVICES)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Unregistered Sales of Equity Securities
Item: Financial Statements and Exhibits
Documents
8-K — form8-k.htm (Primary)
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): April 1, 2026
SOLUNA
HOLDINGS, INC.
(Exact
name of Registrant as Specified in Its Charter)
Nevada
001-40261
14-1462255
(State
or Other Jurisdiction
of
Incorporation)
(Commission
File
Number)
(IRS
Employer
Identification
No.)
325
Washington Avenue Extension
Albany,
New York
12205
(Address
of Principal Executive Offices)
(Zip
Code)
Registrant’s
Telephone Number, Including Area Code: (516) 216-9257
N/A
(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, par value $0.001 per share
SLNH
The
Nasdaq Stock Market LLC
9.0%
Series A Cumulative Perpetual Preferred Stock, par value $0.001 per share
SLNHP
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 (§ 230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
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.
Briscoe
Wind Farm Acquisition
On
April 1, 2026, Soluna DV Wind SponsorCo, LLC (the “Tranche C Borrower”), a wholly owned indirect subsidiary of Soluna
Holdings, Inc. (the “Company”), entered into a Membership Interest Purchase Agreement (the “MIPA”)
with Briscoe Wind Project Holdings I, LLC, JPM Capital Corporation, and Morgan Stanley Wind LLC (collectively, the “Sellers”),
pursuant to which the Tranche C Borrower acquired one hundred percent (100%) of the issued and outstanding equity interests in Briscoe
Wind Farm, LLC, a Delaware limited liability company (the “Briscoe Project Company”), from the Sellers. The Briscoe
Project Company owns an approximately 149.85 MW nameplate capacity wind generation project located in Briscoe and Floyd counties, Texas
(the “Briscoe Project”). The closing of the acquisition (the “Briscoe Project Acquisition”) occurred
simultaneously with the execution of the MIPA on April 1, 2026.
The
aggregate closing payment under the MIPA was approximately $53,000,000. In connection with the closing, the Sellers’ existing credit
facility and subordinated notes encumbering the Briscoe Project Company were repaid in full and all related liens were released. The
MIPA contains customary representations and warranties of the Sellers regarding the Sellers and the Briscoe Project Company, and the
Tranche C Borrower obtained a buyer-side representations and warranties insurance policy in connection with the transaction.
Additional
Information
The
foregoing summary of the MIPA does not purport to be complete and is qualified in its entirety by reference to the full text of the MIPA,
by and among the parties named therein, a copy of which is attached hereto as Exhibit 10.1, and is incorporated in its entirety herein
by reference.
Credit
and Guaranty Agreement and Consent and Amendment No. 1
As
previously disclosed, on September 12, 2025, the Company caused its subsidiaries Soluna DVSL ComputeCo, LLC (“Dorothy 1A Borrower”),
Soluna DVSL II ComputeCo, LLC (“Dorothy 2 Borrower”), and Soluna KK I ComputeCo, LLC (collectively with Dorothy 1A
Borrower and Dorothy 2 Borrower, the “Existing Borrowers”) to enter into a Credit and Guaranty Agreement (the “Credit
Agreement”) with Generate Lending, LLC, as administrative agent and collateral agent (the “Agent”), and
Generate Strategic Credit Master Fund I-A, L.P. (the “Lender”). The Credit Agreement provides for senior secured term
loan commitments in an aggregate principal amount of up to $35.5 million, comprised of (i) Tranche A-1 ($5.5 million), (ii) Tranche A-3
($11.5 million), and (iii) Tranche B ($18.5 million). In addition, the Credit Agreement permits the Existing Borrowers to request one
or more Additional Tranche Loan Commitments (as defined in the Credit Agreement), in the aggregate amount of up to $64.5 million, subject
to the approval of the Lender and the Agent, for project-level financing of eligible projects.
On
April 1, 2026, in connection with the Briscoe Project Acquisition, the Company caused the Existing Borrowers and the Tranche C Borrower
(collectively, the “Borrowers”) to enter into Consent and Amendment No. 1 to the Credit Agreement and Amendment No.
1 to the Pledge Agreement (the “Amendment”, and the Credit Agreement, as amended by the Amendment, the “Amended
Credit Agreement”) with the Agent and the Lender. The Amendment became effective on April 1, 2026 (the “First Amendment
Effective Date”).
Under
the Amended Credit Agreement: (i) Tranche A-1 and Tranche A-3 loan commitments finance the Dorothy 1A Project and the Dorothy 2 Project,
respectively; and (ii) Tranche B loan commitments finance the development and construction of the Kati Project.
Among
other changes, the Amendment: (i) adds the Tranche C Borrower as a new borrower and guarantor; (ii) establishes Tranche C loan commitments
of $12,500,000 to finance the Briscoe Project Acquisition; (iii) adds the Briscoe Project Company as a guarantor following the acquisition;
and (iv) includes the Briscoe Project as a new project under the Amended Credit Agreement.
The
Tranche C loans bear interest at a variable rate based on either ABR or Term SOFR, with margins of 8.0% per annum for SOFR loans and
7.0% per annum for ABR loans. They are also subject to scheduled amortization and mandatory cash sweep prepayments. In connection with
the Amendment, the Company issued warrants to purchase shares of common stock to the Holder (as defined below) on the First Amendment
Effective Date.
Use
of Proceeds and Security
Proceeds
of the Tranche A loans and Tranche B loans are used to finance, refinance, develop and construct the Company’s Dorothy 1A, Dorothy
2 and Kati data center projects, fund a debt service reserve account, and pay fees and expenses. Proceeds of the Tranche C loans were
used to reimburse the Tranche C Borrower’s parent for funding the Briscoe Project Acquisition, to pay fees and expenses in connection
with the transactions, and to fund the debt service reserve account for the Tranche C Borrower. Loans bear interest at a variable rate
based on either ABR or Term SOFR, as set forth in the Amended Credit Agreement. The applicable interest rate for SOFR loans is equal
to Term SOFR plus a margin of 10.0% per annum for Tranche A and Tranche B loans and 8.0% per annum for Tranche C loans, and for ABR loans
is equal to the ABR plus a margin of 9.0% per annum for Tranche A and Tranche B loans and 7.0% per annum for Tranche C loans. The Amended
Credit Agreement provides for a SOFR rate floor of 3.50% per annum. The Borrowers are required to pay a commitment fee of 1.00% per annum
on undrawn amounts of the Tranche B loan commitments and any Additional Tranche Loan Commitments. During the continuance of an event
of default, a default rate applies equal to the otherwise applicable rate plus 2.0% per annum. Loans are subject to scheduled amortization,
fees and prepayment premiums. The obligations are guaranteed by certain Company subsidiaries and secured by first-priority liens on substantially
all assets of the Borrowers and guarantors, including pledges of equity interests, security interests in deposit and other collateral
accounts (subject to control agreements), and mortgages/deeds of trust on the relevant project sites, including the Briscoe Project site.
Key
Terms and Covenants
The
Amended Credit Agreement contains customary representations and warranties, affirmative and negative covenants, and events of default
for financings of this type. Events of default under the Amended Credit Agreement include, among other things, non-payment of principal,
interest or fees, inaccuracy of representations and warranties, breach of covenants, cross-default to certain material indebtedness,
bankruptcy and insolvency, loss of regulatory status with respect to the Briscoe Project, and change of control. Upon the occurrence
and during the continuance of an event of default, the lenders may declare all outstanding principal and accrued but unpaid interest
under the Amended Credit Agreement immediately due and payable and may exercise the other rights and remedies provided under the Amended
Credit Agreement and related loan documents. Negative covenants in the Amended Credit Agreement include, among other things, restrictions
on the Borrowers and guarantors with respect to incurring additional indebtedness, creating liens on assets, selling assets or making
fundamental changes, making restricted payments, entering into affiliate transactions, and using loan proceeds for unauthorized purposes.
The Amended Credit Agreement also restricts investments, capital expenditures, and speculative transactions, and requires that all deposit
and securities accounts be subject to control agreements. Financial covenants require (i) a minimum trailing Debt Service Coverage Ratio
of 1.60:1.00 (which, solely with respect to the Briscoe Project and the Tranche C Borrower, does not apply until the first quarterly
date occurring after June 30, 2026) and (ii) a minimum Forward Contracted Debt Service Coverage Ratio of 1.20:1.00 (which does not apply
with respect to the Tranche A loans or Tranche B loans for the quarterly date of March 31, 2026 and does not apply to the Briscoe Project),
in each case as further described in the Amended Credit Agreement. The facility also includes customary mandatory prepayment provisions,
including cash sweep prepayments applicable to each tranche.
Additional
Information
The
foregoing summary of the Amended Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the
full text of the Amended Credit Agreement, by and among the parties named therein, a copy of which is attached hereto as Exhibit 10.2,
and is incorporated in its entirety herein by reference.
Private
Placement
Pursuant
to the Amended Credit Agreement, the Company issued to Generate Strategic Credit Master Fund I-B, L.P., an affiliate of the Lender and
the Agent (the “Holder”), in a private placement (the “Private Placement”): (i) a pre-funded warrant
(the “Pre-Funded Warrant”) to purchase up to 700,000 shares of common stock of the Company, par value $0.001 per share
(the “Common Stock”); (ii) a common warrant to purchase up to 1,350,000 shares of Common Stock (the “Common
Warrant 1”); and (iii) a common warrant to purchase up to 650,000 shares of Common Stock (the “Common Warrant 2”
and, together with the Common Warrant 1, the “Common Warrants” and, collectively, the “Warrants”).
The
Warrants issued to the Holder in the Private Placement were issued and sold without registration under the Securities Act of 1933, as
amended (the “Securities Act”), or state securities laws in reliance on the exemptions provided by Section 4(a)(2)
of the Securities Act promulgated thereunder and in reliance on similar exemptions under applicable state laws.
Pre-Funded
Warrant
The
Pre-Funded Warrant is exercisable immediately and expires on the five-year anniversary of the date of issuance. The Pre-Funded Warrant
is exercisable at an exercise price of $0.0001 per share of Common Stock. The Pre-Funded Warrant is exercisable in whole or in part by
delivering to the Company a duly executed exercise notice and by payment in full in immediately available funds for the number of shares
of Common Stock purchased upon such exercise or, at the option of each holder, by means of a cashless exercise, in which case the holder
would receive upon such exercise the net number of shares of Common Stock determined according to the formula set forth in the Pre-Funded
Warrant.
The
Holder does not have the right to exercise any portion of the Pre-Funded Warrant if the Holder, together with its affiliates, would beneficially
own in excess of 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to such exercise. The Holder
may increase or decrease the beneficial ownership limitation up to 9.99%, provided, however, that any increase in the beneficial ownership
limitation shall not be effective until 61 days following notice of such change to the Company.
Common
Warrants
The
Common Warrant 1 and Common Warrant 2 are identical except with regard to their exercise price. The Common Warrant 1 has an exercise
price of $0.68 per share of Common Stock and the Common Warrant 2 has an exercise price of $0.75 per share of Common Stock.
The
Common Warrants are exercisable upon issuance and expire on the five-year anniversary of their date of issuance. The Common Warrants
are exercisable, at the option of the Holder, in whole or in part by delivering to the Company a duly executed exercise notice and, at
any time a registration statement registering the resale or other disposition of the shares of Common Stock underlying the Common Warrants
under the Securities Act is effective and available for such shares, or an exemption from registration under the Securities Act is available
for such shares, by payment in full in immediately available funds for the number of shares of Common Stock purchased upon such exercise.
If at the time of exercise more than six months after the issuance date there is no effective registration statement registering, or
the prospectus contained therein is not available for the resale or other disposition of the shares of Common Stock underlying the Common
Warrants, then the Common Warrants may also be exercised, in whole or in part, at such time by means of a cashless exercise, in which
case the holder would receive upon such exercise the net number of shares of Common Stock determined according to the formula set forth
in the Common Warrants.
The
Holder does not have the right to exercise any portion of the Common Warrants if the Holder, together with its affiliates, would beneficially
own in excess of 9.99% of the number of shares of our Common Stock outstanding immediately after giving effect to such exercise. The
Holder may increase or decrease the beneficial ownership limitation up to 9.99%, provided, however, that any increase in the beneficial
ownership limitation shall not be effective until 61 days following notice of such change to the Company.
Registration
Rights Agreement
In
connection with the Amended Credit Agreement, on April 1, 2026, the Company amended and restated the registration rights agreement previously
entered into with the Holder on September 12, 2025 (as amended and restated, the “Amended and Restated Registration Rights Agreement”),
pursuant to which the Company has agreed to file one or more registration statements on Form S-3 covering the resale or other disposition
of the Warrants and the shares of Common Stock issuable upon the exercise of the Warrants (collectively, the “Registrable Securities”).
Pursuant to the Registration Rights Agreement, the Company has, among other things, agreed to: (i) file a registration statement covering
the Registrable Securities no later than fifteen (15) days after the date the Company entered into the Amended and Restated Registration
Rights Agreement (the “Filing Date”), (ii) cause such registration statement to be declared effective under the Securities
Act as soon as reasonably practicable but, in any event, no later than seventy-five (75) days after the Filing Date (or thirty (30) days
if the Securities and Exchange Commission (the “SEC”) does not review such registration statement), and (iii) use
its best efforts to keep any such registration statement continuously effective until (a) the date that all of the Registrable Securities
have been publicly sold by the Holder, (b) the date that all of the Registrable Securities have been previously sold in accordance with
Rule 144, (c) such time as both (x) all of such Registrable Securities may be sold by the Holder without any restriction pursuant to
Rule 144, including holding period, volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company
to be in compliance with the current public information requirement under Rule 144, and (y) the Holder, together with its affiliates,
holds less than 3.0% of the Company’s then outstanding shares of Common Stock, or (d) five (5) years from the effective date of
the first registration statement filed with the SEC registering for resale the Registrable Securities.
The
foregoing descriptions of the form of Pre-Funded Warrant, form of Common Warrant 1, form of Common Warrant 2, and Amended and Restated
Registration Rights Agreement are qualified in their entirety by reference to the full text of each respective agreement, a copy of which
is attached hereto as Exhibits 4.1, 4.2, 4.3 and 10.3, respectively, and are incorporated in their entirety herein by reference.
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Amended Credit Agreement is incorporated by
reference herein.
Item
3.02 Unregistered Sales of Equity Securities.
The
information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Warrants and the shares of Common Stock underlying
the Warrants is incorporated by reference herein.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
Description
4.1
Form of Pre-Funded Warrant.
4.2
Form of Common Warrant 1.
4.3
Form of Common Warrant 2.
10.1*^
Membership Interest Purchase Agreement, dated April 1, 2026, by and among Soluna DV Wind SponsorCo, LLC, Briscoe Wind Project Holdings I, LLC, JPM Capital Corporation and Morgan Stanley Wind LLC
10.2*^
Consent and Amendment No. 1 to the Credit Agreement and Amendment No. 1 to the Pledge Agreement, dated April 1, 2026, by and among the Company and the parties thereto.
10.3
Amended and Restated Registration Rights Agreement, dated April 2, 2026 between the Company and Generate Strategic Credit Master Fund I-B, L.P.
104
Cover
Page Interactive Date File (embedded with the Inline XBRL document).
*
Annexes,
schedules and/or exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish
supplementally a copy of any of the omitted schedules and exhibits to the SEC on a confidential basis upon request.
^
The
Company has omitted portions of the referenced exhibit pursuant to Item 601(b) of Regulation S-K, because they (a) are not material
and (b) are the type that the Company treats as private or confidential.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
SOLUNA
HOLDINGS, INC.
Date:
April 3, 2026
By:
/s/
Michael Picchi
Michael
Picchi
Chief
Financial Officer
(principal
financial officer)
EX-4.1
EX-4.1
Filename: ex4-1.htm · Sequence: 2
Exhibit
4.1
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE 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 AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
SOLUNA
HOLDINGS, INC.
Warrant
Shares: 700,000
Issue
Date: April 1, 2026
Initial Exercise Date: April 1, 2026
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Generate Strategic Credit Master
Fund I-B, L.P. or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”)
and on or prior to 5:00 p.m. (New York City time) on the five year anniversary of the Issue Date (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Soluna Holdings, Inc., a Nevada corporation (the “Company”),
up to 700,000 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price
for this Warrant shall be equal to the Warrant Fair Market Value (as defined herein). The purchase price of one share of Common Stock
under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“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.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (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 is 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 Holder.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“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.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Equiniti Trust Company, the current transfer agent of the 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 is 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 is then listed or quoted as reported by Bloomberg (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 is 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 Holder.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form attached hereto as Annex A (the “Notice
of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank, in either case in immediately available funds, unless the cashless exercise procedure specified in Section 2(c) below is
specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any Notice of Exercise be required. The Company shall have no obligation to inquire with
respect to or otherwise confirm the authenticity of the signature(s) contained on any Notice of Exercise nor the authority of the person
so executing such Notice of Exercise. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $0.0001, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. This Warrant may
also be exercised, in whole or in part and at the sole discretion of the Holder, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
(A)
=
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of
the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading
hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of
“regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
(B)
=
the Exercise Price of this Warrant, as adjusted hereunder; and
(X)
=
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of
this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the characteristics of the Warrant being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this
Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company’s transfer agent is
then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant
Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume
or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrant), and otherwise by physical delivery
of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one
(1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the
Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery
Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the
holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery
of the Warrant Shares, provided that the Company shall have received payment of the aggregate Exercise Price (other than in the case
of a cashless exercise) within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard
Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the
Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash,
as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the
Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth
Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the
FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of the delivery of the Notice of Exercise.
ii.
Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the unpurchased Warrant Shares remaining available under this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price or round up to the next whole share.
v.
Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue, transfer, stamp, documentary
or similar tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall
be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied by the assignment form attached hereto as Annex
B (the “Assignment Form”) duly executed by the Holder and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established
clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vi.
Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
vii.
Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases,
shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in
connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed,
and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which
such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares
of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.
Any such reinstated Warrant or delivery to the Holder of shares of Common Stock shall be subject to the Beneficial Ownership Limitation
set forth in Section 2(e). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase
obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000.
The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon
request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
e)
Beneficial Ownership Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right
to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith and the calculations
required under this Section 2(e). To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of
Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each
case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A)
the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or
its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the
Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance
of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to
apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this Section 2(e) shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(e) to correct this Section 2(e) (or any portion hereof) which may be defective or inconsistent with
the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this Section 2(e) shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time while this Warrant
is outstanding the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then
the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent
(or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent); provided, that such Purchase
Right shall terminate on, and shall not be held in abeyance for any period subsequent to the Termination Date.
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent); provided, that such Purchase
Right shall terminate on, and shall not be held in abeyance for any period subsequent to the Termination Date.
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than for the purpose
of changing the Company’s name), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct
or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which
holders of the outstanding equity securities of the Company having voting power are permitted to sell, tender or exchange their shares
for other securities, cash or property and has been accepted by the holders of outstanding securities representing more than 50% of the
aggregate voting power of the issued and outstanding equity securities of the Company, (iv) the Company, directly or indirectly, in one
or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v)
the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another
Person or group of Persons whereby such other Person or group acquires securities representing more than 50% of the aggregate voting
power, including the power to vote on the election of directors of the Company, of the issued and outstanding equity securities of the
Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have
the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of
such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant),
the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall require any successor entity in a Fundamental Transaction in which the Company is not the
survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and
the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance
reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and
shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares
of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from
and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the
“Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume
all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (and all of its subsidiaries, taken as a whole)
is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the
Holder at its last email or other address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior
to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the
holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective
or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares
of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer
or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect
the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof,
this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of
this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay
any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers a duly executed Assignment
Form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new
holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant
and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder as follows as of
the date of this Warrant:
a)
Organization; Existence and Qualification. The Company is duly incorporated and is validly existing and in good standing under
the laws of the state of its formation, is duly qualified to do business and is in good standing in each jurisdiction in which it is
required to qualify in order to conduct its business and operations.
b)
Authorization and Enforceability.
i.
The
Company has the requisite power and authority to execute and deliver this Warrant and to consummate the transactions contemplated
hereby. The execution, delivery and performance by the Company of this Warrant and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action on the part of the Company.
ii.
(A) This Warrant has been duly executed and delivered by the Company and (B) this Warrant constitutes the valid and
binding obligations of the Company, enforceable against the Company in accordance with its terms, except, in the case of clause (B) above,
as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
the rights and remedies of creditors generally as well as to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
c)
No Violation. The execution, delivery and performance by the Company of this Warrant, and the consummation of the transactions
contemplated hereby, do not and will not: (i) violate any provision of the organizational documents of the Company; (ii) violate any
law applicable to or binding on the Company or any of its properties or assets in any material respect or (iii) conflict with or result
in any breach or contravention of, or constitute any default under, or result in or require the creation of any lien upon the property
of the Company under, any material agreement or instrument to which it is a party or by which it or any of its subsidiaries or any of
their respective properties may be bound or affected or any material order, injunction, writ or decree of any governmental authority
or any arbitral award to which the Company or any of their respective properties is subject.
d)
Capitalization. As of the date immediately preceding the date hereof, the authorized capital stock of the Company consisted of
375,000,000 shares of Common Stock, 6,040,000 shares of Series A Preferred Stock and 187,500 shares of Series B Preferred Stock. As of
the close of business on the date immediately preceding the date hereof, (i) 111,381,064 shares of Common Stock were issued and outstanding,
(ii) 86,595 shares of Common Stock were held in treasury, (iii) 30,874,926 shares of Common Stock were reserved for issuance, (iv) 0
shares of Common Stock were subject to repurchase, (v) 4,920,045 shares of Series A Preferred Stock were outstanding, (vi) 0 shares of
Series A Preferred Stock were held in treasury, (vii) 57,190 shares of Series B Preferred Stock were outstanding, and (viii) 0 shares
of Series B Preferred Stock were held in treasury. All of the issued and outstanding shares of Common Stock are duly authorized, validly
issued, fully paid, nonassessable and have not been issued (A) in violation of any agreement, arrangement, or commitment to which the
Company is a party or is subject, (B) in violation of applicable law or (C) in violation of preemptive rights, rights of first refusal
or similar rights.
e)
Consents, Approvals or Waivers. The execution, delivery and performance by the Company of this Warrant (including the authorization,
issuance and delivery of the Warrant Shares) will not be subject to or require any approval, consent, exemption, authorization, or other
action by, or notice to, or any registration or filing with or notification to, any governmental authority or any other Person, except
for (i) filings required by federal and state securities laws, (ii) the notice for listing on the Nasdaq Capital Market (“Nasdaq”)
of the Warrant Shares; (iii) the filings with the Commission pursuant to the Amended and Restated Registration Rights Agreement, dated
April 1, 2026, between the Holder and the Company and (iv) such approvals, consents, exemptions, authorizations, actions or notices as
have been duly obtained, taken or made and are in full force and effect.
f)
Sale of Securities. Neither the Company nor any other Person authorized by the Company to act on its behalf, has engaged in a
general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) of investors with respect to
offers or sales of the Warrant or the Warrant Shares, and neither the Company nor any Person acting on its behalf has made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that could cause the offering or issuance of
the Warrant or the Warrant Shares to be integrated with prior offerings by the Company for purposes of the Securities Act that could
result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will
the Company take any action or steps that could cause the offering or issuance of the Warrant or the Warrant Shares to be integrated
with other offerings by the Company.
g)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and is listed
on Nasdaq, and the Company has taken no action designed to, or is reasonably likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Common Stock from Nasdaq, nor has the Company received any notification from
the Commission or Nasdaq regarding the termination of such registration or listing. Except as set forth in the SEC Reports, the Company
is in compliance in all material respects with the listing and listing maintenance requirements of Nasdaq applicable to it for the continued
trading of its Common Stock on Nasdaq. “SEC Reports” means (a) the Company’s most recently filed Annual Report
on Form 10-K, and (b) all Quarterly Reports on Form 10-Q or Current Reports on Form 8-K filed or furnished (as applicable) by the Company
following the end of the most recent fiscal year for which an Annual Report on Form 10-K has been filed and prior to the date hereof,
together in each case with any documents incorporated by reference therein or exhibits thereto.
h)
No “Bad Actor” Disqualification. With respect to the Warrant and the Warrant Shares to be offered and sold hereunder
in reliance on Regulation D under the Securities Act, none of the Company, any of their predecessors, any affiliated issuer, any director,
executive officer, other officer of the Company participating in the offering of Warrant and the Warrant Shares 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” and, together, “Issuer Covered Persons”) 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 the Holder a copy of any disclosures provided thereunder.
Section
6. Tax Matters.
a)
The Company will maintain its status as an entity classified as a C corporation for U.S. federal income tax purposes through the Termination
Date.
b)
The Company and the Holder intend to treat the Warrants as Common Stock and the exercise of the Warrant for Warrant Shares as a nonevent
for U.S. federal and applicable state and local tax purposes.
c)
If the Company determines that U.S. federal withholding of tax with respect to the Warrants or the Warrant Shares held by the Holder
is necessary, the Company shall use commercially reasonable efforts to notify the Holder reasonably in advance of such withholding, and
provide the Holder with a reasonable opportunity to establish an exemption or other basis for reducing or eliminating such U.S. federal
withholding tax. The Company shall cooperate with the Holder, and shall use commercially reasonable efforts to provide the Holder with
information that the Holder may request, in connection with the Holder’s tax reporting and U.S. federal withholding tax obligations
relating to the Warrants and the Warrant Shares, including with respect to each distribution payable on the Warrant Shares (whether in
cash or in kind) or deemed distribution on the Warrant or Warrant Shares, providing the Holder with a contemporaneous reasonable estimate
as to the amount of any such distribution that is expected to be treated as a dividend pursuant to Section 301(c)(1) of the Internal
Revenue Code of 1986, as amended (the “Code”).
d)
Each of the parties hereto agree that, for U.S. federal and applicable state income tax purposes, the Holder will, promptly following
the issue date, determine the fair market value of the Warrants as of the issue date (the “Warrant Fair Market Value”).
The parties hereto further agree to file all U.S. federal (and applicable state and local) income tax returns consistent with the foregoing
sentence in this clause (d) except as otherwise required following a “determination” within the meaning of Section 1313(a)
of the Code to the contrary.
e)
The Company will determine each year whether the Company is reasonably expected to become a “United States real property holding
corporation” (as defined in Section 897(c)(2) of the Code) (a “USRPHC”) for such year, and shall notify the
Holder of this determination as soon as reasonably practicable following the end of such year, provided that (i) the Company shall not
be required to make such determination in a year following such determination if the Company has determined that the relevant valuations
and any other relevant facts or information has not changed in a manner reasonably expected to impact such determination and (ii) to
the extent the Company becomes aware of any facts or other information that would reasonably be expected to result in the Company becoming
a USRPHC, the Company shall provide notice to the Holder as soon as reasonably practicable.
Section
7. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) herein, in no event shall the Company be required to net cash
settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
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 Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
d)
Authorized Shares.
The
Company covenants that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take such
reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that
all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the
purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Nasdaq Listing. At any time that any Warrant or Warrant Shares are outstanding, the Company shall not effect any voluntary deregistration
under the Exchange Act or any voluntary delisting with Nasdaq (or any other national securities exchange upon which the Common Stock
may subsequently be listed) in respect of the Common Stock other than in connection with a Fundamental Transaction.
f)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant 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. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their
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. The Company and, by accepting this Warrant, the Holder each 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, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, 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 Warrant 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 the Company or the Holder shall commence an action, suit or proceeding to enforce any
provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their
reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action
or proceeding.
g)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
h)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i)
Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation,
any Notice of Exercise, shall be in writing and delivered personally, by email or sent by a nationally recognized overnight courier service,
addressed to the Company, at Soluna Holdings, Inc., 325 Washington Ave Extension, Albany, New York 12205 (Attention: Chief Financial
Officer), or such other email address or address as the Company may specify for such purposes by notice to the Holder. Any and all notices
or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by email,
or sent by a nationally recognized overnight courier service addressed to the Holder at the email address or address of the Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via email at the email address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via email at the email address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
j)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
k)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
l)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by such Holder.
m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company on
the one hand, and the Holder of this Warrant on the other hand.
n)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
o)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
p)
Electronic Signatures. This Warrant may be executed in any number of original or facsimile counterparts, each of which shall for
all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. The words
“execution,” “signed,” “signature,” and words of like import in this Warrant or in any other certificate,
agreement or document related to this Warrant shall include images of manually executed signatures transmitted by facsimile or other
electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures
(including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without
limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of
the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the
fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on
the Uniform Electronic Transactions Act or the Uniform Commercial Code.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
SOLUNA
HOLDINGS, INC.
By:
Name:
Title:
Annex
A
NOTICE
OF EXERCISE
To:
SOLUNA HOLDINGS, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ]
in lawful money of the United States; or
[ ]
the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities
Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: _______________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________
Name
of Authorized Signatory: ___________________________________________________
Title
of Authorized Signatory: ____________________________________________________
Date:________________________________________________________________________
Annex
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
(Please
Print)
Address:
(Please
Print)
Phone
Number:
Address:
Dated:
_______________ __, ______
Holder’s
Signature: ____________________
Holder’s
Address: _____________________
EX-4.2
EX-4.2
Filename: ex4-2.htm · Sequence: 3
Exhibit
4.2
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE 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 AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
SOLUNA
HOLDINGS, INC.
Warrant
Shares: 1,350,000
Issue
Date: April 1, 2026
Initial
Exercise Date: April 1, 2026
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Generate Strategic Credit Master
Fund I-B, L.P. or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”)
and on or prior to 5:00 p.m. (New York City time) on the five year anniversary of the Issue Date (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Soluna Holdings, Inc., a Nevada corporation (the “Company”),
up to 1,350,000 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price
for this Warrant shall be equal to the Warrant Fair Market Value (as defined herein). The purchase price of one share of Common Stock
under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“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.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (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 is 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 Holder.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“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.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Equiniti Trust Company, the current transfer agent of the 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 is 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 is then listed or quoted as reported by Bloomberg (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 is 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 Holder.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form attached hereto as Annex A (the “Notice
of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank, in either case in immediately available funds, unless the cashless exercise procedure specified in Section 2(c) below is
specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any Notice of Exercise be required. The Company shall have no obligation to inquire with
respect to or otherwise confirm the authenticity of the signature(s) contained on any Notice of Exercise nor the authority of the person
so executing such Notice of Exercise. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $0.68, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at any time after the six (6) month anniversary of the Issue Date, there is no effective registration statement
registering, or the prospectus contained therein is not available for the resale of the Warrant Shares by the Holder, this Warrant may
also be exercised, in whole or in part and at the sole discretion of the Holder, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
(A)
=
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of
the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading
hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of
“regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
(B)
=
the
Exercise Price of this Warrant, as adjusted hereunder; and
(X)
=
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the characteristics of the Warrant being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this
Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company’s transfer agent is
then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant
Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume
or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrant), and otherwise by physical delivery
of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one
(1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the
Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery
Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the
holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery
of the Warrant Shares, provided that the Company shall have received payment of the aggregate Exercise Price (other than in the case
of a cashless exercise) within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard
Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the
Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash,
as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the
Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth
Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the
FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of the delivery of the Notice of Exercise.
ii.
Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the unpurchased Warrant Shares remaining available under this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price or round up to the next whole share.
v.
Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue, transfer, stamp, documentary
or similar tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall
be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied by the assignment form attached hereto as Annex
B (the “Assignment Form”) duly executed by the Holder and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established
clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vi.
Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
vii.
Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases,
shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in
connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed,
and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which
such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares
of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.
Any such reinstated Warrant or delivery to the Holder of shares of Common Stock shall be subject to the Beneficial Ownership Limitation
set forth in Section 2(e). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase
obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000.
The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon
request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
e)
Beneficial Ownership Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right
to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith and the calculations
required under this Section 2(e). To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of
Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each
case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A)
the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or
its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the
Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance
of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to
apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this Section 2(e) shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(e) to correct this Section 2(e) (or any portion hereof) which may be defective or inconsistent with
the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this Section 2(e) shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time while this Warrant
is outstanding the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then
the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent
(or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent); provided, that such Purchase
Right shall terminate on, and shall not be held in abeyance for any period subsequent to the Termination Date.
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent); provided, that such Purchase
Right shall terminate on, and shall not be held in abeyance for any period subsequent to the Termination Date.
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than for the purpose
of changing the Company’s name), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct
or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which
holders of the outstanding equity securities of the Company having voting power are permitted to sell, tender or exchange their shares
for other securities, cash or property and has been accepted by the holders of outstanding securities representing more than 50% of the
aggregate voting power of the issued and outstanding equity securities of the Company, (iv) the Company, directly or indirectly, in one
or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v)
the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another
Person or group of Persons whereby such other Person or group acquires securities representing more than 50% of the aggregate voting
power, including the power to vote on the election of directors of the Company, of the issued and outstanding equity securities of the
Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have
the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of
such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant),
the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall require any successor entity in a Fundamental Transaction in which the Company is not the
survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and
the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance
reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and
shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares
of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from
and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the
“Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume
all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (and all of its subsidiaries, taken as a whole)
is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the
Holder at its last email or other address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior
to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the
holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective
or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares
of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer
or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect
the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof,
this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of
this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay
any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers a duly executed Assignment
Form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new
holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant
and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder as follows as of
the date of this Warrant:
a)
Organization; Existence and Qualification. The Company is duly incorporated and is validly existing and in good standing under
the laws of the state of its formation, is duly qualified to do business and is in good standing in each jurisdiction in which it is
required to qualify in order to conduct its business and operations.
b)
Authorization and Enforceability.
i.
The
Company has the requisite power and authority to execute and deliver this Warrant and to consummate the transactions contemplated
hereby. The execution, delivery and performance by the Company of this Warrant and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action on the part of the Company.
ii.
(A)
This Warrant has been duly executed and delivered by the Company and (B) this Warrant constitutes the valid and binding obligations
of the Company, enforceable against the Company in accordance with its terms, except, in the case of clause (B) above, as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights and remedies
of creditors generally as well as to general principles of equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
c)
No Violation. The execution, delivery and performance by the Company of this Warrant, and the consummation of the transactions
contemplated hereby, do not and will not: (i) violate any provision of the organizational documents of the Company; (ii) violate any
law applicable to or binding on the Company or any of its properties or assets in any material respect or (iii) conflict with or result
in any breach or contravention of, or constitute any default under, or result in or require the creation of any lien upon the property
of the Company under, any material agreement or instrument to which it is a party or by which it or any of its subsidiaries or any of
their respective properties may be bound or affected or any material order, injunction, writ or decree of any governmental authority
or any arbitral award to which the Company or any of their respective properties is subject.
d)
Capitalization. As of the date immediately preceding the date hereof, the authorized capital stock of the Company consisted of
375,000,000 shares of Common Stock, 6,040,000 shares of Series A Preferred Stock and 187,500 shares of Series B Preferred Stock. As of
the close of business on the date immediately preceding the date hereof, (i) 111,381,064 shares of Common Stock were issued and outstanding,
(ii) 86,595 shares of Common Stock were held in treasury, (iii) 30,874,926 shares of Common Stock were reserved for issuance, (iv) 0
shares of Common Stock were subject to repurchase, (v) 4,920,045 shares of Series A Preferred Stock were outstanding, (vi) 0 shares of
Series A Preferred Stock were held in treasury, (vii) 57,190 shares of Series B Preferred Stock were outstanding, and (viii) 0 shares
of Series B Preferred Stock were held in treasury. All of the issued and outstanding shares of Common Stock are duly authorized, validly
issued, fully paid, nonassessable and have not been issued (A) in violation of any agreement, arrangement, or commitment to which the
Company is a party or is subject, (B) in violation of applicable law or (C) in violation of preemptive rights, rights of first refusal
or similar rights.
e)
Consents, Approvals or Waivers. The execution, delivery and performance by the Company of this Warrant (including the authorization,
issuance and delivery of the Warrant Shares) will not be subject to or require any approval, consent, exemption, authorization, or other
action by, or notice to, or any registration or filing with or notification to, any governmental authority or any other Person, except
for (i) filings required by federal and state securities laws, (ii) the notice for listing on the Nasdaq Capital Market (“Nasdaq”)
of the Warrant Shares; (iii) the filings with the Commission pursuant to the Amended and Restated Registration Rights Agreement, dated
April 1, 2026, between the Holder and the Company and (iv) such approvals, consents, exemptions, authorizations, actions or notices as
have been duly obtained, taken or made and are in full force and effect.
f)
Sale of Securities. Neither the Company nor any other Person authorized by the Company to act on its behalf, has engaged in a
general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) of investors with respect to
offers or sales of the Warrant or the Warrant Shares, and neither the Company nor any Person acting on its behalf has made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that could cause the offering or issuance of
the Warrant or the Warrant Shares to be integrated with prior offerings by the Company for purposes of the Securities Act that could
result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will
the Company take any action or steps that could cause the offering or issuance of the Warrant or the Warrant Shares to be integrated
with other offerings by the Company.
g)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and is listed
on Nasdaq, and the Company has taken no action designed to, or is reasonably likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Common Stock from Nasdaq, nor has the Company received any notification from
the Commission or Nasdaq regarding the termination of such registration or listing. Except as set forth in the SEC Reports, the Company
is in compliance in all material respects with the listing and listing maintenance requirements of Nasdaq applicable to it for the continued
trading of its Common Stock on Nasdaq. “SEC Reports” means (a) the Company’s most recently filed Annual Report
on Form 10-K, and (b) all Quarterly Reports on Form 10-Q or Current Reports on Form 8-K filed or furnished (as applicable) by the Company
following the end of the most recent fiscal year for which an Annual Report on Form 10-K has been filed and prior to the date hereof,
together in each case with any documents incorporated by reference therein or exhibits thereto.
h)
No “Bad Actor” Disqualification. With respect to the Warrant and the Warrant Shares to be offered and sold hereunder
in reliance on Regulation D under the Securities Act, none of the Company, any of their predecessors, any affiliated issuer, any director,
executive officer, other officer of the Company participating in the offering of Warrant and the Warrant Shares 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” and, together, “Issuer Covered Persons”) 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 the Holder a copy of any disclosures provided thereunder.
Section
6. Tax Matters.
a)
The Company will maintain its status as an entity classified as a C corporation for U.S. federal income tax purposes through the Termination
Date.
b)
The Company and the Holder intend to treat the Warrants as Common Stock and the exercise of the Warrant for Warrant Shares as a nonevent
for U.S. federal and applicable state and local tax purposes.
c)
If the Company determines that U.S. federal withholding of tax with respect to the Warrants or the Warrant Shares held by the Holder
is necessary, the Company shall use commercially reasonable efforts to notify the Holder reasonably in advance of such withholding, and
provide the Holder with a reasonable opportunity to establish an exemption or other basis for reducing or eliminating such U.S. federal
withholding tax. The Company shall cooperate with the Holder, and shall use commercially reasonable efforts to provide the Holder with
information that the Holder may request, in connection with the Holder’s tax reporting and U.S. federal withholding tax obligations
relating to the Warrants and the Warrant Shares, including with respect to each distribution payable on the Warrant Shares (whether in
cash or in kind) or deemed distribution on the Warrant or Warrant Shares, providing the Holder with a contemporaneous reasonable estimate
as to the amount of any such distribution that is expected to be treated as a dividend pursuant to Section 301(c)(1) of the Internal
Revenue Code of 1986, as amended (the “Code”).
d)
Each of the parties hereto agree that, for U.S. federal and applicable state income tax purposes, the Holder will, promptly following
the issue date, determine the fair market value of the Warrants as of the issue date (the “Warrant Fair Market Value”).
The parties hereto further agree to file all U.S. federal (and applicable state and local) income tax returns consistent with the foregoing
sentence in this clause (d) except as otherwise required following a “determination” within the meaning of Section 1313(a)
of the Code to the contrary.
e)
The Company will determine each year whether the Company is reasonably expected to become a “United States real property holding
corporation” (as defined in Section 897(c)(2) of the Code) (a “USRPHC”) for such year, and shall notify the
Holder of this determination as soon as reasonably practicable following the end of such year, provided that (i) the Company shall not
be required to make such determination in a year following such determination if the Company has determined that the relevant valuations
and any other relevant facts or information has not changed in a manner reasonably expected to impact such determination and (ii) to
the extent the Company becomes aware of any facts or other information that would reasonably be expected to result in the Company becoming
a USRPHC, the Company shall provide notice to the Holder as soon as reasonably practicable.
Section
7. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) herein, in no event shall the Company be required to net cash
settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
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 Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
d)
Authorized Shares.
The
Company covenants that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take such
reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that
all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the
purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Nasdaq Listing. At any time that any Warrant or Warrant Shares are outstanding, the Company shall not effect any voluntary deregistration
under the Exchange Act or any voluntary delisting with Nasdaq (or any other national securities exchange upon which the Common Stock
may subsequently be listed) in respect of the Common Stock other than in connection with a Fundamental Transaction.
f)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant 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. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their
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. The Company and, by accepting this Warrant, the Holder each 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, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, 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 Warrant 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 the Company or the Holder shall commence an action, suit or proceeding to enforce any
provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their
reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action
or proceeding.
g)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
h)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i)
Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation,
any Notice of Exercise, shall be in writing and delivered personally, by email or sent by a nationally recognized overnight courier service,
addressed to the Company, at Soluna Holdings, Inc., 325 Washington Ave Extension, Albany, New York 12205 (Attention: Chief Financial
Officer), or such other email address or address as the Company may specify for such purposes by notice to the Holder. Any and all notices
or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by email,
or sent by a nationally recognized overnight courier service addressed to the Holder at the email address or address of the Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via email at the email address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via email at the email address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
j)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
k)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
l)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by such Holder.
m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company on
the one hand, and the Holder of this Warrant on the other hand.
n)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
o)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
p)
Electronic Signatures. This Warrant may be executed in any number of original or facsimile counterparts, each of which shall for
all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. The words
“execution,” “signed,” “signature,” and words of like import in this Warrant or in any other certificate,
agreement or document related to this Warrant shall include images of manually executed signatures transmitted by facsimile or other
electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures
(including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without
limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of
the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the
fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on
the Uniform Electronic Transactions Act or the Uniform Commercial Code.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
SOLUNA
HOLDINGS, INC.
By:
Name:
Title:
Annex
A
NOTICE
OF EXERCISE
To:
SOLUNA HOLDINGS, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ]
in lawful money of the United States; or
[ ]
the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities
Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: _______________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________
Name
of Authorized Signatory: ___________________________________________________
Title
of Authorized Signatory: ____________________________________________________
Date:________________________________________________________________________
Annex
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
(Please
Print)
Address:
(Please
Print)
Phone
Number:
Address:
Dated:
_______________ __, ______
Holder’s
Signature: ____________________
Holder’s
Address: _____________________
EX-4.3
EX-4.3
Filename: ex4-3.htm · Sequence: 4
Exhibit
4.3
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE 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 AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON
STOCK PURCHASE WARRANT
SOLUNA
HOLDINGS, INC.
Warrant
Shares: 650,000
Issue
Date: April 1, 2026
Initial
Exercise Date: April 1, 2026
THIS
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Generate Strategic Credit Master
Fund I-B, L.P. or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise
and the conditions hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”)
and on or prior to 5:00 p.m. (New York City time) on the five year anniversary of the Issue Date (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Soluna Holdings, Inc., a Nevada corporation (the “Company”),
up to 650,000 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price
for this Warrant shall be equal to the Warrant Fair Market Value (as defined herein). The purchase price of one share of Common Stock
under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“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.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (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 is 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 Holder.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“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.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Equiniti Trust Company, the current transfer agent of the 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 is 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 is then listed or quoted as reported by Bloomberg (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 is 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 Holder.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form attached hereto as Annex A (the “Notice
of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement
Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank, in either case in immediately available funds, unless the cashless exercise procedure specified in Section 2(c) below is
specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any Notice of Exercise be required. The Company shall have no obligation to inquire with
respect to or otherwise confirm the authenticity of the signature(s) contained on any Notice of Exercise nor the authority of the person
so executing such Notice of Exercise. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $0.75, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at any time after the six (6) month anniversary of the Issue Date, there is no effective registration statement
registering, or the prospectus contained therein is not available for the resale of the Warrant Shares by the Holder, this Warrant may
also be exercised, in whole or in part and at the sole discretion of the Holder, at such time by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
(A)
=
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of
the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading
hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of
“regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
(B)
=
the
Exercise Price of this Warrant, as adjusted hereunder; and
(X)
=
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise.
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the characteristics of the Warrant being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this
Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company’s transfer agent is
then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant
Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume
or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrant), and otherwise by physical delivery
of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise
by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one
(1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the
Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery
Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the
holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery
of the Warrant Shares, provided that the Company shall have received payment of the aggregate Exercise Price (other than in the case
of a cashless exercise) within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard
Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the
Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash,
as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the
Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth
Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the
FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of the delivery of the Notice of Exercise.
ii.
Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the
rights of the Holder to purchase the unpurchased Warrant Shares remaining available under this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price or round up to the next whole share.
v.
Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue, transfer, stamp, documentary
or similar tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall
be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed
by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name
of the Holder, this Warrant when surrendered for exercise shall be accompanied by the assignment form attached hereto as Annex
B (the “Assignment Form”) duly executed by the Holder and the Company may require, as a condition thereto,
the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established
clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vi.
Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
vii.
Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases,
shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving
upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x)
the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in
connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed,
and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which
such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares
of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder.
Any such reinstated Warrant or delivery to the Holder of shares of Common Stock shall be subject to the Beneficial Ownership Limitation
set forth in Section 2(e). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase
obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000.
The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon
request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required
pursuant to the terms hereof.
e)
Beneficial Ownership Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right
to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith and the calculations
required under this Section 2(e). To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of
Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each
case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A)
the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or
its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the
Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance
of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to
apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this Section 2(e) shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(e) to correct this Section 2(e) (or any portion hereof) which may be defective or inconsistent with
the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this Section 2(e) shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event
and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of
shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant
shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for
the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time while this Warrant
is outstanding the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then
the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder
could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent
(or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent); provided, that such Purchase
Right shall terminate on, and shall not be held in abeyance for any period subsequent to the Termination Date.
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in
the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent); provided, that such Purchase
Right shall terminate on, and shall not be held in abeyance for any period subsequent to the Termination Date.
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person (other than for the purpose
of changing the Company’s name), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct
or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which
holders of the outstanding equity securities of the Company having voting power are permitted to sell, tender or exchange their shares
for other securities, cash or property and has been accepted by the holders of outstanding securities representing more than 50% of the
aggregate voting power of the issued and outstanding equity securities of the Company, (iv) the Company, directly or indirectly, in one
or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v)
the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another
Person or group of Persons whereby such other Person or group acquires securities representing more than 50% of the aggregate voting
power, including the power to vote on the election of directors of the Company, of the issued and outstanding equity securities of the
Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have
the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of
such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant),
the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation,
and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction
by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction
(without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination
of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration
issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price
among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall require any successor entity in a Fundamental Transaction in which the Company is not the
survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and
the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance
reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and
shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares
of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and
with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from
and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the
“Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume
all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date
shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (and all of its subsidiaries, taken as a whole)
is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the
Holder at its last email or other address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior
to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the
holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective
or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares
of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer
or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect
the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof,
this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of
this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay
any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers a duly executed Assignment
Form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new
holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant
and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder as follows as of
the date of this Warrant:
a)
Organization; Existence and Qualification. The Company is duly incorporated and is validly existing and in good standing under
the laws of the state of its formation, is duly qualified to do business and is in good standing in each jurisdiction in which it is
required to qualify in order to conduct its business and operations.
b)
Authorization and Enforceability.
i.
The
Company has the requisite power and authority to execute and deliver this Warrant and to consummate the transactions contemplated
hereby. The execution, delivery and performance by the Company of this Warrant and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action on the part of the Company.
ii.
(A)
This Warrant has been duly executed and delivered by the Company and (B) this Warrant constitutes the valid and binding obligations
of the Company, enforceable against the Company in accordance with its terms, except, in the case of clause (B) above, as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights and remedies
of creditors generally as well as to general principles of equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
c)
No Violation. The execution, delivery and performance by the Company of this Warrant, and the consummation of the transactions
contemplated hereby, do not and will not: (i) violate any provision of the organizational documents of the Company; (ii) violate any
law applicable to or binding on the Company or any of its properties or assets in any material respect or (iii) conflict with or result
in any breach or contravention of, or constitute any default under, or result in or require the creation of any lien upon the property
of the Company under, any material agreement or instrument to which it is a party or by which it or any of its subsidiaries or any of
their respective properties may be bound or affected or any material order, injunction, writ or decree of any governmental authority
or any arbitral award to which the Company or any of their respective properties is subject.
d) Capitalization.
Capitalization. As of the date immediately preceding the date hereof, the authorized capital stock of the Company consisted of
375,000,000 shares of Common Stock, 6,040,000 shares of Series A Preferred Stock and 187,500 shares of Series B Preferred Stock. As
of the close of business on the date immediately preceding the date hereof, (i) 111,381,064 shares of Common Stock were issued and
outstanding, (ii) 86,595 shares of Common Stock were held in treasury, (iii) 30,874,926 shares of Common Stock were reserved for
issuance, (iv) 0 shares of Common Stock were subject to repurchase, (v) 4,920,045 shares of Series A Preferred Stock were
outstanding, (vi) 0 shares of Series A Preferred Stock were held in treasury, (vii) 57,190 shares of Series B Preferred Stock were
outstanding, and (viii) 0 shares of Series B Preferred Stock were held in treasury. All of the issued and outstanding shares of
Common Stock are duly authorized, validly issued, fully paid, nonassessable and have not been issued (A) in violation of any
agreement, arrangement, or commitment to which the Company is a party or is subject, (B) in violation of applicable law or (C) in
violation of preemptive rights, rights of first refusal or similar rights.
e)
Consents, Approvals or Waivers. The execution, delivery and performance by the Company of this Warrant (including the authorization,
issuance and delivery of the Warrant Shares) will not be subject to or require any approval, consent, exemption, authorization, or other
action by, or notice to, or any registration or filing with or notification to, any governmental authority or any other Person, except
for (i) filings required by federal and state securities laws, (ii) the notice for listing on the Nasdaq Capital Market (“Nasdaq”)
of the Warrant Shares; (iii) the filings with the Commission pursuant to the Amended and Restated Registration Rights Agreement, dated
April 1, 2026, between the Holder and the Company and (iv) such approvals, consents, exemptions, authorizations, actions or notices as
have been duly obtained, taken or made and are in full force and effect.
f)
Sale of Securities. Neither the Company nor any other Person authorized by the Company to act on its behalf, has engaged in a
general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) of investors with respect to
offers or sales of the Warrant or the Warrant Shares, and neither the Company nor any Person acting on its behalf has made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that could cause the offering or issuance of
the Warrant or the Warrant Shares to be integrated with prior offerings by the Company for purposes of the Securities Act that could
result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will
the Company take any action or steps that could cause the offering or issuance of the Warrant or the Warrant Shares to be integrated
with other offerings by the Company.
g)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and is listed
on Nasdaq, and the Company has taken no action designed to, or is reasonably likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act or delisting the Common Stock from Nasdaq, nor has the Company received any notification from
the Commission or Nasdaq regarding the termination of such registration or listing. Except as set forth in the SEC Reports, the Company
is in compliance in all material respects with the listing and listing maintenance requirements of Nasdaq applicable to it for the continued
trading of its Common Stock on Nasdaq. “SEC Reports” means (a) the Company’s most recently filed Annual Report
on Form 10-K, and (b) all Quarterly Reports on Form 10-Q or Current Reports on Form 8-K filed or furnished (as applicable) by the Company
following the end of the most recent fiscal year for which an Annual Report on Form 10-K has been filed and prior to the date hereof,
together in each case with any documents incorporated by reference therein or exhibits thereto.
h)
No “Bad Actor” Disqualification. With respect to the Warrant and the Warrant Shares to be offered and sold hereunder
in reliance on Regulation D under the Securities Act, none of the Company, any of their predecessors, any affiliated issuer, any director,
executive officer, other officer of the Company participating in the offering of Warrant and the Warrant Shares 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” and, together, “Issuer Covered Persons”) 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 the Holder a copy of any disclosures provided thereunder.
Section
6. Tax Matters.
a)
The Company will maintain its status as an entity classified as a C corporation for U.S. federal income tax purposes through the Termination
Date.
b)
The Company and the Holder intend to treat the Warrants as Common Stock and the exercise of the Warrant for Warrant Shares as a nonevent
for U.S. federal and applicable state and local tax purposes.
c)
If the Company determines that U.S. federal withholding of tax with respect to the Warrants or the Warrant Shares held by the Holder
is necessary, the Company shall use commercially reasonable efforts to notify the Holder reasonably in advance of such withholding, and
provide the Holder with a reasonable opportunity to establish an exemption or other basis for reducing or eliminating such U.S. federal
withholding tax. The Company shall cooperate with the Holder, and shall use commercially reasonable efforts to provide the Holder with
information that the Holder may request, in connection with the Holder’s tax reporting and U.S. federal withholding tax obligations
relating to the Warrants and the Warrant Shares, including with respect to each distribution payable on the Warrant Shares (whether in
cash or in kind) or deemed distribution on the Warrant or Warrant Shares, providing the Holder with a contemporaneous reasonable estimate
as to the amount of any such distribution that is expected to be treated as a dividend pursuant to Section 301(c)(1) of the Internal
Revenue Code of 1986, as amended (the “Code”).
d)
Each of the parties hereto agree that, for U.S. federal and applicable state income tax purposes, the Holder will, promptly following
the issue date, determine the fair market value of the Warrants as of the issue date (the “Warrant Fair Market Value”).
The parties hereto further agree to file all U.S. federal (and applicable state and local) income tax returns consistent with the foregoing
sentence in this clause (d) except as otherwise required following a “determination” within the meaning of Section 1313(a)
of the Code to the contrary.
e)
The Company will determine each year whether the Company is reasonably expected to become a “United States real property holding
corporation” (as defined in Section 897(c)(2) of the Code) (a “USRPHC”) for such year, and shall notify the
Holder of this determination as soon as reasonably practicable following the end of such year, provided that (i) the Company shall not
be required to make such determination in a year following such determination if the Company has determined that the relevant valuations
and any other relevant facts or information has not changed in a manner reasonably expected to impact such determination and (ii) to
the extent the Company becomes aware of any facts or other information that would reasonably be expected to result in the Company becoming
a USRPHC, the Company shall provide notice to the Holder as soon as reasonably practicable.
Section
7. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) herein, in no event shall the Company be required to net cash
settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
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 Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
d)
Authorized Shares.
The
Company covenants that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take such
reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable
law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that
all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the
purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Nasdaq Listing. At any time that any Warrant or Warrant Shares are outstanding, the Company shall not effect any voluntary deregistration
under the Exchange Act or any voluntary delisting with Nasdaq (or any other national securities exchange upon which the Common Stock
may subsequently be listed) in respect of the Common Stock other than in connection with a Fundamental Transaction.
f)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant 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. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or the Holder or their
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. The Company and, by accepting this Warrant, the Holder each 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, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. The Company and, by
accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents to process being served in
any such suit, 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 Warrant 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 the Company or the Holder shall commence an action, suit or proceeding to enforce any
provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their
reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action
or proceeding.
g)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
h)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i)
Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation,
any Notice of Exercise, shall be in writing and delivered personally, by email or sent by a nationally recognized overnight courier service,
addressed to the Company, at Soluna Holdings, Inc., 325 Washington Ave Extension, Albany, New York 12205 (Attention: Chief Financial
Officer), or such other email address or address as the Company may specify for such purposes by notice to the Holder. Any and all notices
or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by email,
or sent by a nationally recognized overnight courier service addressed to the Holder at the email address or address of the Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via email at the email address set forth in this Section
prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication
is delivered via email at the email address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
j)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
k)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
l)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by such Holder.
m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company on
the one hand, and the Holder of this Warrant on the other hand.
n)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
o)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
p)
Electronic Signatures. This Warrant may be executed in any number of original or facsimile counterparts, each of which shall for
all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. The words
“execution,” “signed,” “signature,” and words of like import in this Warrant or in any other certificate,
agreement or document related to this Warrant shall include images of manually executed signatures transmitted by facsimile or other
electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures
(including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without
limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of
the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the
fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on
the Uniform Electronic Transactions Act or the Uniform Commercial Code.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
SOLUNA
HOLDINGS, INC.
By:
Name:
Title:
Annex
A
NOTICE
OF EXERCISE
To:
SOLUNA HOLDINGS, INC.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[ ]
in lawful money of the United States; or
[ ]
the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities
Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: _______________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________
Name
of Authorized Signatory: ___________________________________________________
Title
of Authorized Signatory: ____________________________________________________
Date:________________________________________________________________________
Annex
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name:
(Please
Print)
Address:
(Please
Print)
Phone
Number:
Address:
Dated:
_______________ __, ______
Holder’s
Signature: ____________________
Holder’s
Address: _____________________
EX-10.1
EX-10.1
Filename: ex10-1.htm · Sequence: 5
Exhibit
10.1
Execution
Version
MEMBERSHIP
INTEREST PURCHASE AGREEMENT
dated
as of April 1, 2026,
by
and among
BRISCOE
WIND PROJECT HOLDINGS I, LLC,
JPM
CAPITAL CORPORATION, AND
MORGAN
STANLEY WIND LLC, AS SELLERS,
AND
SOLUNA
DV WIND SPONSORCO, LLC, AS BUYER
TABLE
OF CONTENTS
ARTICLE I DEFINITIONS AND REFERENCES
1
Section
1.01
Certain
Defined Terms
1
Section
1.02
References
and Construction
13
ARTICLE II PURCHASE AND SALE
14
Section
2.01
Purchase
and Sale of the Company Interests
14
Section
2.02
Closing
Payment
14
Section
2.03
Post-Closing
Purchase Price Adjustment
14
Section
2.04
Tax
Treatment
17
ARTICLE III CLOSING
17
Section
3.01
Time
and Place of the Closing
17
Section
3.02
Deliveries
of Sellers at the Closing
17
Section
3.03
Deliveries
of Buyer at the Closing
18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLERS REGARDING SELLERS AND THE COMPANY INTERESTS
19
Section
4.01
Organization
and Good Standing
19
Section
4.02
Title
to Company Interests
19
Section
4.03
Authority
20
Section
4.04
Non-Contravention
20
Section
4.05
Proceedings;
Bankruptcy
20
Section
4.06
Brokers’
Fees
21
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS REGARDING THE COMPANY
21
Section
5.01
Organization
and Good Standing
21
Section
5.02
No
Subsidiaries
21
Section
5.03
Charter
Documents
21
Section
5.04
Non-Contravention
21
Section
5.05
Proceedings;
Bankruptcy
22
Section
5.06
Financial
Statements; No Undisclosed Liabilities
22
Section
5.07
Tax
Matters
23
Section
5.08
Contracts
24
Section
5.09
Real
Property;
27
Section
5.10
Permits
28
Section
5.11
Compliance
with Laws
28
Section
5.12
Employee
and Benefit Plan Matters
28
Section
5.13
Environmental
29
Section
5.14
Intellectual
Property
29
Section
5.15
Contracts
with Sellers and Their Affiliates; Intercompany Accounts
30
Section
5.16
Support
Obligations
30
Section
5.17
Indebtedness
30
Section
5.18
Insurance
30
Section
5.19
FERC
Regulatory Status
30
Section
5.20
Bank
Accounts and Officers
30
Section
5.21
Compliance
with Anti-Corruption Laws
31
Section
5.22
Exclusivity
of Representations
31
i
ARTICLE
VI REPRESENTATIONS AND WARRANTIES OF BUYER
32
Section
6.01
Organization
and Good Standing
32
Section
6.02
Authority
32
Section
6.03
Non-Contravention
32
Section
6.04
Proceedings
33
Section
6.05
Financing
33
Section
6.06
Restricted
Securities
33
Section
6.07
Accredited
Investor; Investment Intent
33
Section
6.08
Brokers
33
Section
6.09
Solvency
33
Section
6.10
Tax
Matters
34
Section
6.11
Qualifications
34
Section
6.12
No
Foreign Control
34
Section
6.13
No
PUCT Filing
34
Section
6.14
Lone
Star Infrastructure Protection Act
34
Section
6.15
Buyer’s
Reliance
34
Section
6.16
Compliance
with Anti-Corruption Laws
35
ARTICLE
VII COVENANTS OF THE PARTIES
36
Section
7.01
Tax
Matters
36
Section
7.02
Transfer
Taxes
38
Section
7.03
Insurance
Matters
38
Section
7.04
Public
Announcements
38
Section
7.05
Confidentiality
39
Section
7.06
Books
and Records At and After Closing
40
Section
7.07
R&W
Insurance Policy
41
Section
7.08
Settlement
of Affiliate Accounts
41
ARTICLE
VIII SURVIVAL
42
Section
8.01
Survival;
Recourse
42
ARTICLE
IX MISCELLANEOUS
43
Section
9.01
Notices
43
Section
9.02
Entire
Agreement
45
Section
9.03
Waiver;
Amendment
45
Section
9.04
Binding
Effect; Assignment; No Third Party Benefit
45
Section
9.05
Severability
46
Section
9.06
Expenses
46
Section
9.07
Governing
Law; Submission to Jurisdiction; Waiver of Jury Trial
46
Section
9.08
Further
Assurances
47
Section
9.09
Counterparts
47
Section
9.10
Specific
Performance
47
Section
9.11
Disclosures
47
Section
9.12
Releases
48
EXHIBITS
Exhibit A – Binder Agreement
Exhibit B – Interests Assignment
Exhibit C – Juwi Consent
Exhibit D – Payoff Letters
Exhibit E – Accounting Principles
Exhibit F – Estimated Closing Net Working Capital Statement
ii
MEMBERSHIP
INTEREST PURCHASE AGREEMENT
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated as of April 1, 2026 (this “Agreement”), is entered into by and among
Briscoe Wind Project Holdings I, LLC, a Delaware limited liability company (“Briscoe Holdings”), JPM Capital Corporation,
a Delaware corporation (“JPMCC”), and Morgan Stanley Wind LLC, a Delaware limited liability company (“MSW”
and, together with Briscoe Holdings and JPMCC, “Sellers”), and Soluna DV Wind SponsorCo, LLC, a Delaware limited liability
company (“Buyer”). Each of Sellers and Buyer may be referred to herein as a “Party” and collectively
as the “Parties.”
RECITALS
WHEREAS,
Sellers are the sole members of Briscoe Wind Farm, LLC, a Delaware limited liability company (the “Company”), which
is the sole owner of an approximately 150-megawatt nameplate capacity wind generation project in Briscoe County and Floyd County, Texas
(the “Project”); and
WHEREAS,
subject to the terms and conditions of this Agreement, Buyer desires to purchase from Sellers, and Sellers desire to sell to Buyer, all
of the issued and outstanding Equity Interests in the Company (the “Company Interests”).
NOW,
THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties
and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Sellers and Buyer agree as follows:
ARTICLE
I
DEFINITIONS AND REFERENCES
Section
1.01 Certain Defined Terms. When used in this Agreement, the following terms shall have the respective meanings set forth below:
“2025
Balance Sheet Date” is defined in Section 5.06(a).
“Accounting
Firm” means Alvarez & Marsal or, if Alvarez & Marsal is unavailable or unable to perform the service required hereunder,
an internationally recognized independent certified public accounting firm as mutually agreed upon by Sellers and Buyer, each acting
reasonably and in good faith.
“Accounting
Principles” is defined in Section 2.03(a).
“Actual
Closing Net Working Capital Balance” is defined in Section 2.03(b).
“Actual
Closing Net Working Capital Statement” is defined in Section 2.03(b).
“Affiliate”
means any Person directly or indirectly Controlling, Controlled by or under common Control with another Person. For the purposes of this
definition, “Control” (including the correlative terms “Controlling” and “Controlled”)
means, where used with respect to any Person, the possession, directly or indirectly, of the power to (a) vote fifty percent (50%) or
more of the securities or other Equity Interests of a Person having ordinary voting power or (b) direct or cause the direction of the
actions, management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
1
“Affiliate
Contract” means any Contract between (a) a Seller or any of its Affiliates (other than the Company) or any officer, director,
employee, manager, or Affiliate of such Person, on the one hand, and (b) the Company, on the other hand.
“Agreement”
is defined in the Preamble.
“Anti-Corruption
Laws” means (a) the United States Foreign Corrupt Practices Act of 1977, (b) the United Kingdom Bribery Act 2010, (c) the Bank
Secrecy Act of 1970 by Title III of the USA PATRIOT Act, or any specified unlawful activity as defined in 18 U.S.C. § 1956(c)(7)
and (d) all other similar Applicable Laws concerning or relating to tax evasion, financial record keeping, money laundering, corruption
or otherwise dealing in the proceeds of crime or the bribery of, or the providing of unlawful gratuities, facilitation payments, or other
benefits to, any representative or agent of a Governmental Entity or any other Person.
“Applicable
Laws” means, as to any Person, any law (including common law), statute, treaty, rule, act, code (including the Code), order,
decree, ruling, proclamation, judgment, constitution, regulation or ordinance that has been enacted, issued, adopted, implemented or
promulgated by any Governmental Entity having valid jurisdiction, in each case, applicable to or binding upon such Person or any of its
property, or to which such Person or any of its property is subject.
“Assets”
means all right, title and interest of a Person in land, properties, buildings, improvements, fixtures, foundations, assets and rights
of any kind, whether tangible and intangible, real, personal and mixed, including Contracts, Real Property Agreements, equipment, systems,
books, data, reports, studies and records, proprietary rights, Intellectual Property, Permits, rights under or pursuant to all warranties,
representations and guarantees, cash, accounts receivable, deposits and prepaid expenses.
“Audited
Financial Statements” is defined in Section 5.06(a).
“Benefit
Plan” means each (a) “employee benefit plan,” as such term is defined in Section 3(3) of ERISA (whether or not
the plan is subject to ERISA), (b) incentive compensation, bonus or deferred compensation plan or arrangement, (c) employment (other
than offer letters providing for at-will employment), consulting, severance or change in control plan, arrangement or policy, (d) vacation
practice or other paid-time off program and (e) other employee benefit, fringe benefit or compensation plan, arrangement, policy or commitment.
“Binder
Agreement” means that certain binder agreement in connection with the R&W Insurance Policy, substantially in the form attached
hereto as Exhibit A, dated as of the Closing Date, pursuant to which Buyer has received a conditional written commitment (subject
only to the payment of premium) from the insurer(s) specified therein to fully bind the R&W Insurance Policy effective as of the
Closing Date.
2
“BNSF
Licenses” means (a) that certain License for Electric Supply Line Across or Along Railway Property, by and between BNSF Railway
Company and Company, dated April 9, 2015, with a Tracking Number of 14-51518; (b) that certain License for Electric Supply Line Across
or Along Railway Property, by and between BNSF Railway Company and Company, dated April 9, 2015, with a Tracking Number of 14-51573;
(c) that certain License for Electric Supply Line Across or Along Railway Property, by and between BNSF Railway Company and Company,
dated April 9, 2015, with a Tracking Number of 14-51574; and (d) that certain License for Electric Supply Line Across or Along Railway
Property, by and between BNSF Railway Company and Company, dated April 9, 2015, with a Tracking Number of 14-51575.
“Briscoe
Credit Agreement” means that certain Credit Agreement, dated as of August 16, 2021, by and among Company, U.S. Bank National
Association, in its capacity as administrative agent, and the lenders party thereto, as amended by that certain Consent and Amendment
to Credit Agreement, dated as of March 2, 2023, that certain Consent and Second Amendment to Credit Agreement, dated as of May 4, 2023,
and that certain Omnibus Waiver and Amendment, dated as of November 1, 2024, and as otherwise amended, restated, modified or supplemented
from time to time.
“Briscoe
Financing Documents” means the Briscoe Credit Agreement, the Energy Hedge Agreement, and the other Financing Documents (as
defined in the Briscoe Intercreditor Agreement).
“Briscoe
Intercreditor Agreement” means the Intercreditor Agreement as defined in the Briscoe Credit Agreement.
“Briscoe
Holdings” is defined in the Preamble.
“Business
Day” means a day other than a Saturday, Sunday or day on which commercial banks in New York, New York are authorized or required
to be closed for business.
“Buyer”
is defined in the Preamble.
“Buyer
Related Parties” means, collectively, the Buyer, its Affiliates, and each of their respective Representatives, and the successors
and assigns of each of the foregoing.
“Buyer
Releasee” is defined in Section 9.12(b).
“Buyer
Releasor” is defined in Section 9.12(a).
“Charter
Documents” means with respect to any Person, the articles or certificate of incorporation or organization, bylaws, limited
partnership agreement, partnership agreement, certificate of formation, limited liability company agreement or comparable governing documents
of such Person, as applicable, including any amendment, waiver or other modification of the foregoing which is currently in effect.
“Closing”
is defined in Section 3.01.
“Closing
Date” is defined in Section 3.01.
3
“Closing
Payment” is defined in Section 2.02.
“Closing
Unpaid Indebtedness Amount” is defined in Section 2.03(a).
“Code”
means the Internal Revenue Code of 1986, as amended.
“Company”
is defined in the Recitals.
“Company
Confidential Information” is defined in Section 7.05(a).
“Company
Interests” is defined in the Recitals.
“Contract”
means any legally enforceable contract, lease, purchase order, letter of credit, license, note, mortgage, indenture, arrangement, obligation
or other agreement (whether written or oral), including any amendment, waiver or other modification of the foregoing but excluding any
Permit.
“Current
Assets” means an amount equal to (a) all current assets of the Company as determined in accordance with the Accounting Principles
(but excluding any receivables owed to the Company from Sellers or any of their Affiliates, in each case that were settled in accordance
with Section 7.08, and including cash of the Company only to the extent such cash is not subject to any restrictions after giving
effect to the Payoff Letters), minus (b) $3,218,967, an estimated amount of which is set forth on Exhibit F.
“Current
Liabilities” means all current liabilities of the Company determined in accordance with the Accounting Principles (but excluding
any payables owed to the Sellers or any of their Affiliates from the Company, in each case that were settled in accordance with Section
7.08), an estimated amount of which is set forth on Exhibit F.
“Data
Room” means the electronic data room established on behalf of Sellers at app.idealsvdr.com in the folder named “Project
Rainer” and to which Buyer has been granted access as part of its due diligence of the transactions contemplated hereby.
“Dollars”
or “$” means U.S. Dollars.
“Energy
Hedge Agreement” is defined in the Briscoe Credit Agreement.
“Enforceability
Exceptions” is defined in Section 4.03.
“Environment”
means the natural environment (including soil, land surface or subsurface strata, surface waters, groundwater, sediment, air (including
all layers of the atmosphere), organic and inorganic matter and living organisms and any other natural resource).
“Environmental
Attributes” means any and all renewable energy credits, environmental air quality credits, emissions reduction credits, or
similar certificates, benefits, allocations, offsets and allowances howsoever entitled or named associated with, attributable to, arising
from or otherwise related to the operation of the Project, including credits, allowances, offsets, tags, certificates and similar products
or rights that can be used to claim responsibility for or ownership of any avoidance or reduction of emissions or pollutants, including
carbon dioxide and any other greenhouse gas, arising under any governmental, regulatory or voluntary program.
4
“Environmental
Laws” means any Applicable Law in effect as of the date hereof pertaining to regulations, requirements, standards, or limitations
regarding (a) the prevention, abatement, or elimination of pollution, (b) public health and safety, in each case, with respect to exposure
to Hazardous Substances, (c) the use, generation, handling, treatment, storage, disposal, Release, transportation of, or exposure to,
Hazardous Substances, including protection or damage therefrom, and the clean-up, removal, or remediation thereof, or (d) the protection
or preservation of the Environment.
“Equity
Interests” means with respect to (a) any corporation, any share, or any depositary receipt or other certificate representing
any share, of an equity ownership interest in that corporation, (b) any other entity, any share, membership, limited liability company,
partnership or other percentage interest, unit of participation or other equivalent (however designated) of an equity ownership interest
in such entity and (c) with respect to any entity, any securities convertible into or exchangeable for or evidencing the right to subscribe
for any membership or limited liability company interests, equity interests or shares of capital stock of (or other ownership or profit
interests in) such entity or warrants, rights or options for the purchase or acquisition from such entity of such membership or limited
liability company interests, equity interests or shares (or such other interests) and any other ownership, profit interests or rights
to distribution of or from such entity (including partnership, membership, limited liability company or trust interests therein), whether
voting or nonvoting.
“ERCOT”
means the Electric Reliability Council of Texas, Inc. or any successor entity.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
“Estimated
Closing Net Working Capital Balance” is defined in Section 2.03(a).
“Estimated
Closing Net Working Capital Statement” is defined in Section 2.03(a).
“Exempt
Wholesale Generator” means an “exempt wholesale generator” under the PUHCA and applicable FERC rules and regulations.
“FERC”
means the Federal Energy Regulatory Commission.
“Financial
Statements” is defined in Section 5.06(a).
“Flow
of Funds Memorandum” means the final flow of funds memorandum approved by the Parties prior to Closing, setting forth (a) the
amounts to be paid pursuant to the Payoff Letters and (b) the amounts owed to Sellers on the Closing Date pursuant to this Agreement
and the Persons (and the account information related thereto) to whom such amounts are to be paid.
“FPA”
means the Federal Power Act, as amended, and the rules and regulations promulgated thereunder.
5
“Fraud”
means, with respect to any Party, any actual and intentional fraud by such Party in the making of an express representation or warranty
set forth in this Agreement with the specific intent to deceive and mislead (as opposed to constructive fraud or reckless indifference
to the truth).
“GAAP”
means U.S. generally accepted accounting principles as in effect at the applicable time.
“Governmental
Entity” means any court or tribunal in any jurisdiction (domestic or foreign) or any federal, tribal, state, county, municipal
or other governmental or quasi-governmental body, agency, authority, department, commission, board, bureau, subdivision or other recognized
instrumentality (domestic or foreign) having legal jurisdiction or authority over the matter or Person in question, including NERC, ERCOT,
or any applicable independent system operator.
“Hazardous
Substance” means (a) petroleum or any distillates or fractions thereof, processed natural gas and natural gas liquids, liquefied
natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas), combustion ash produced by a resource
recovery facility utilizing a municipal solid waste stream, and drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal resources; (b) asbestos in any form; (c) urea foam formaldehyde
insulation, polychlorinated biphenyls, per- and polyfluoroalkyl substances (PFAS), perfluorooctanoic acid and perfluorooctane sulfonate;
(d) any chemical, compound, material, mixture or substance that is now defined as, included in the definition of or listed in, or otherwise
classified pursuant to, any Environmental Law as a “hazardous wastes,” “hazardous materials,” “hazardous
substances,” “extremely hazardous wastes,” “extremely hazardous substances,” “restricted hazardous
wastes,” “biohazardous waste,” “toxic substances,” “toxic chemicals,” “pollutant,”
“toxic pollutants” or “contaminants” or any other analogous term intended to define, list, or classify substances
by reason of deleterious properties, such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity,
“EP toxicity” or “TCLP toxicity”; and (e) radon gas in the indoor environment, non-naturally occurring radioactive
materials, substances and waste, and non-naturally occurring radiation.
“Indebtedness”
means, with respect to any Person, and without duplication, the aggregate amount of all of the following obligations (a) any obligations,
including reimbursement obligations, for the repayment of borrowed money, whether or not represented by bonds, debentures, notes, letters
of credit, debentures, mortgages or similar debt instruments or debt securities, and all accrued and unpaid fees, interest, or penalties
thereon; (b) amounts owing as deferred purchase price for services or “earn out” or other similar contingent payments other
than accounts payable incurred in the ordinary course of business consistent with past practice; (c) obligations to pay the deferred
and unpaid purchase price of property that has been delivered (other than trade payables incurred in the ordinary course of business);
(d) any liabilities or obligations including reimbursement obligations of such Person in respect of letters of credit, fidelity bonds,
surety bonds, performance bonds and bankers’ acceptances, whether drawn or undrawn; (e) any interest rate protection agreements,
foreign currency exchange agreements, forward contracts or other interest, exchange rate, commodity hedging or swap, collar, cap or other
Contracts the principal purpose of which is to benefit from or reduce or eliminate the risk of fluctuations in interest rates or currencies;
(f) any dividends or distributions declared by the manager of the Company and payable to a Seller that remain unpaid; (g) all obligations
of the Company as a lessee under capitalized leases; (h) any obligations with respect to purchase money indebtedness, (i) obligations
of such Person to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or other equity interests of such
Person or any warrants, rights or options to acquire such capital stock or other equity interests; (j) any other obligation that in accordance
with GAAP is required to be reflected as debt on the balance sheet of such Person (other than trade payables and current accruals incurred
in the ordinary course); (k) amounts owed to the Sellers or their Affiliates, to the extent not settled as of the Closing Date; and (l)
all Indebtedness of another Person referred to in clauses (a) through (k) above or other obligations of another Person
guaranteed by the Company, for which the Company is directly or indirectly, jointly or severally, liable or which is secured by any assets
owned by the Company or used in the conduct of the business of the Company.
6
“Insurance
Policies” means, with respect to any Person, the current policies of insurance in force that insure the respective businesses,
operations, assets and properties of such Person.
“Intellectual
Property” means all intellectual property rights, both statutory and common law rights, including: (a) copyrights, copyrightable
works, rights in databases, data collections, registrations and applications for registration thereof and corresponding rights in works
of authorship, (b) trademarks, service marks, trade names, slogans, domain names, logos, corporate names, trade dress, and registrations,
together with the goodwill associated with any of the foregoing, and applications for registration thereof, (c) patents and patent applications,
inventions, know-how and trade secrets and (d) computer software, programs, applications and databases in any form, including Internet
websites, web content and links, source code, object code and mobile applications.
“Intercompany
Accounts” means any intercompany accounts, balances, payables, receivables or Indebtedness, including any amounts owed to or
from any Seller or its Affiliates (other than the Company), on the one hand, and the Company, on the other hand.
“Interests
Assignment” means the assignment and assumption agreement to transfer the Company Interests from Sellers to Buyer, substantially
in the form attached hereto as Exhibit B.
“Interim
Balance Sheet Date” is defined in Section 5.06(a).
“Interim
Financial Statements” is defined in Section 5.06(a).
“JPMCC”
is defined in the Preamble.
“Juwi
Consent” means that Consent Agreement in substantially the form attached hereto as Exhibit C.
“Knowledge”
means, with respect to Sellers, the actual knowledge, after reasonable inquiry of the employees, officers, directors, and manager of
the Company, as of the date on which a representation or other matter qualified by Knowledge is required to be made by Sellers, of Brad
Wollmer, Jasen Peterson and Gintare Briola.
7
“Leases”
means the lease and sublease agreements in force as of the Closing Date under which the Company is the tenant, lessee, subtenant or sublessee
of real property or is otherwise granted leasehold or subleasehold rights to real property.
“Liability”
means, as to any Person, any liability or obligation whatsoever of such Person, asserted or unasserted, absolute or contingent, accrued
or unaccrued, liquidated or unliquidated, incurred or consequential, or due or to become due.
“Lien”
means any lien, mortgage, deed of trust, adverse claim, easement, pledge, charge, encroachment or other security interest or encumbrance
of any kind, whether voluntary or involuntary, fixed or contingent, choate or inchoate or imposed by Applicable Law or Contract (including
any Contract to give any of the foregoing), and whether or not of record.
“Losses”
means losses, liabilities, claims, damages, awards, penalties, Taxes, fines, demands, obligations, payments, costs and expenses (including
the payments, costs and expenses of any and all actions, suits, Proceedings, assessments, judgments, settlements, and compromises relating
thereto, reasonable attorneys’ fees, reasonable disbursements, interest, penalties and all expenses incurred in investigating,
preparing, enforcing or defending against any Proceedings commenced or threatened or any claim or Order in connection therewith).
“Made
Available” means the respective materials that were made available to Buyer in the Data Room by or on behalf of Sellers not
later than 5:00 p.m. Eastern Time two (2) Business Days prior to the Closing Date.
“Material
Adverse Effect” means any event or series of events, change, fact, development, condition circumstance or effect that, individually
or in the aggregate, has had, or would reasonably be expected to have, a materially adverse effect on (x) the business, Assets, liabilities,
results of operations or condition (financial or otherwise) of the Company (including the ownership, operation or maintenance of the
Project), taken as a whole, or (y) the ability of Sellers to consummate the transactions contemplated by the Transaction Documents or
perform its obligations thereunder; provided, however, that, for purposes of clause (x) above, the term “Material
Adverse Effect” shall not include any change, circumstance or effect resulting from or arising out of (a) the negotiation, execution,
announcement or performance of this Agreement, including the identity of, or the effect of any fact or circumstance relating to, Buyer
or any of its Affiliates, any communication by Buyer or its Affiliates regarding plans, proposals or projections with respect to the
Company or any impact on the relationship of the Company with any customers, suppliers, distributors, vendors, lenders, employees or
partners, (b) changes in the costs of commodities or supplies generally affecting the industry in which the Company operates (including
costs to repower, finance, operate or generate energy from wind energy facilities), (c) any action of a Seller or the Company expressly
permitted or expressly required to be taken by a Seller or the Company in accordance with the terms of this Agreement, (d) changes generally
affecting business, economic or political conditions in the United States or in any other geographic regions where the Company does business,
(e) changes in debt, capital, credit or securities markets, including changes to interests rates or any decline in the price of any security
or any market index, (f) civil unrest or disobedience or any commencement, continuation or escalation of hostilities, terrorist activities
or war or any similar events, including in Russia or Ukraine, or any response thereto, (g) changes in Applicable Law or regulatory policy
or the interpretation or enforcement thereof, (h) acts of God, including hurricanes, storms, tornados or other inclement weather or COVID-19
or other epidemic, pandemic or outbreak of illness or disease, or any effects thereof, (i) changes generally affecting international,
national, regional, state or local wholesale or retail markets for electric power, power generation or power transmission or fuel supply
or transportation or related products and operations, including those due to competitors or regulators, (j) changes generally affecting
the electric generating, transmission or distribution industries, the renewable energy industry (including any change in the prices of
wind energy or industry margins), (k) changes (financial or otherwise) to the business, affairs or operations of Buyer or its Affiliates,
(l) failure to meet any forecast or projection (whether internal or published and whether or not provided to Buyer) of revenue, expenses,
earnings, cash flow or other data for any period or any change in any such forecast or projection (but, for the avoidance of doubt, the
underlying cause of such failure shall not be excluded by this clause (l)), (m) new or proposed generating facilities and their
effect on pricing or transmission, (n) changes in Tax, GAAP, or accounting requirements or principles or the interpretation thereof,
and (o) strikes, work stoppages or other labor conditions of a national, regional or industry-wide nature; provided, further,
however, that the matters described in the foregoing clauses (b), (d) through (j), or (n) through (o)
shall not be excluded for purposes of determining whether a Material Adverse Effect has occurred to the extent such change, circumstance
or effect affects the business, Assets, liabilities, results of operations or condition (financial or otherwise) of the Company, taken
as a whole, in a materially disproportionate manner relative to other similarly situated Persons operating in the renewable energy industry.
8
“Material
Contracts” is defined in Section 5.08(a).
“MSW”
is defined in the Preamble.
“NERC”
means the North American Electric Reliability Corporation or any successor organizations.
“Nonparty
Affiliates” is defined in Section 8.01(d).
“Objection
Notice” is defined in Section 2.03(c).
“Order”
means any order, judgment, writ, injunction, decree, directive, ruling or award of a Governmental Entity, but excluding any Permit.
“Party”
or “Parties” is defined in the Preamble.
“Payoff
Letters” means (a) the payoff letter with respect to the Briscoe Financing Documents, substantially in the applicable form
incorporated in Exhibit D and (b) the payoff letter with respect to the Subordinated Notes, substantially in the applicable form
incorporated in Exhibit D.
“Permits”
means (a) all permits, licenses, authorizations, approvals, certifications, franchises, consents, registrations, waivers, exemptions,
variances, filings, and any other similar approvals, in each case, made with or issued or granted by a Governmental Entity or (b) any
required notice to, any declaration of, or any registration by or with any Governmental Entity required under any Applicable Law.
9
“Permitted
Equity Liens” means, with respect to any applicable Equity Interest, (a) Liens created by virtue of any actions taken by or
on behalf of Buyer or its Affiliates or their successors or assigns, (b) Liens identified on Schedule 5.04, (c) restrictions on
transfer set forth in the Company’s Charter Documents, (d) Liens securing any obligations of the Company pursuant to the Briscoe
Financing Documents (which Liens are being released at Closing), and (e) restrictions on transfer imposed by applicable securities laws.
“Permitted
Liens” means (a) Liens for Taxes, assessments and other governmental charges not yet delinquent or that are being contested
in good faith by appropriate proceedings and for which adequate reserves are reflected in the Financial Statements in accordance with
GAAP, (b) Liens arising in the ordinary course of business (including materialman’s, warehousemen’s, mechanic’s, repairman’s,
landlord’s and other similar Liens) and securing payments not yet delinquent or being contested in good faith and by appropriate
proceedings and for which adequate reserves are reflected in the Financial Statements in accordance with GAAP, (c) restrictions, covenants,
easements, rights-of-way, servitudes, title retention agreements, options, encroachments and other non-monetary encumbrances and defects,
imperfections, or irregularities of title or other non-monetary Liens, in each case of record or that otherwise do not, individually
or in the aggregate, materially interfere with or adversely impact in any material respect the current operation of the Project, (d)
pledges or deposits to secure public or statutory obligations or appeal bonds that have been Made Available to Buyer, (e) zoning, building,
land use, planning and other similar limitations, restrictions, and rights of any Governmental Entity to regulate a Project Asset or
the Project that do not, individually or in the aggregate, impair the current operation of the Project in any material respect, (f) Liens
and other matters disclosed in the Title Policies and Survey which have been Made Available to Buyer, (g) Liens which are released on
the Closing Date, (h) Liens arising under any Support Obligation which have been Made Available to Buyer, (i) non-exclusive licenses
to Intellectual Property, (j) Liens created by the express terms, conditions, restrictions, exceptions, reservations, limitations or
other express provisions of any Contract or Permit which has been Made Available to Buyer (other than as a result of a breach, non-compliance,
or default by the Company with any such Contract or Permit), (k) purchase money Liens and Liens securing rental payments under capital
lease arrangements in the ordinary course of business to the extent set forth, reflected, or disclosed in the Financial Statements, and
(l) Permitted Equity Liens.
“Person”
means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, enterprise,
unincorporated organization or other entity or any Governmental Entity.
“Pre-Closing
Date Tax Period” means any taxable period ending on or before the Closing Date.
“Pre-Closing
Date Tax Return” is defined in Section 7.01(b)(i).
“Proceeding”
means any action, cause of action, demand, charge, complaint, lawsuit, arbitration, audit, proceeding, litigation, summons or subpoena,
whether civil, criminal, administrative, regulatory or otherwise, brought by or before any Governmental Entity.
10
“Project”
is defined in the Recitals.
“Project
Assets” means all Assets of the Company.
“PTCs”
means production tax credits under Section 45 of the Code.
“PUCT”
means the Public Utility Commission of Texas.
“PUHCA”
means the Public Utility Holding Company Act of 2005, as amended, and the rules and regulations promulgated thereunder.
“Purchase
Price” means the Closing Payment, plus or minus any adjustments in accordance with Section 2.03.
“Purchase
Price Allocation Schedule” is defined in Section 2.04.
“R&W
Insurance Policy” means a buyer-side representation and warranty insurance policy from a third-party insurance provider in
respect of the representations and warranties set forth in this Agreement naming Buyer and/or an Affiliate thereof as the “named
insured.”
“Real
Property” means the real property subject to the Real Property Agreements.
“Real
Property Agreement” means any lease, sublease, easement, sub-easement, right of way, deed, crossing agreement, license, or
similar Contract in effect as of the date hereof to which the Company is party.
“Release”
means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, seeping, migrating, abandoning, escaping, leaching, dumping, burying or disposing of Hazardous Substances under, onto, from,
through or into the Environment.
“Representatives”
means, as to any Person, the directors, officers, partners, managers, members, stockholders, equity owners, employees, independent contractors,
counsel, accountants, financial or other advisors, consultants and other agents or representatives of such Person and such Person’s
Affiliates.
“Required
Permits” is defined in Section 5.10.
“Restricted
Party” means any Person (a) targeted by or subject to national, regional or multilateral trade or economic sanctions under
Trade Control Laws, including by being listed on any Trade Control Law-related list of designated or blocked Persons or ordinarily resident
in or organized under the Applicable Laws of a territory that is the subject of comprehensive sanctions under Trade Control Laws (as
of the date of this Agreement, Cuba, Iran, North Korea, Syria, Russia or the Crimea region of Ukraine, the so-called Donetsk People’s
Republic, and the so-called Luhansk People’s Republic regions of Ukraine) (each a “Sanctioned Territory”) or
(b) directly or indirectly Controlled by such Persons.
“Schedules”
means the schedules to this Agreement.
“Securities
Act” means the Securities Act of 1933, as amended.
11
“Seller
Confidential Information” is defined in Section 7.05(b).
“Seller
Protected Parties” is defined in Section 7.07(a).
“Seller
Releasee” is defined in Section 9.12(a).
“Seller
Releasor” is defined in Section 9.12(b).
“Sellers”
is defined in the Preamble.
“Sellers’
Account” means a segregated account designated by Sellers in the Flow of Funds Memorandum.
“Straddle
Period” means any Tax period that begins on or before the Closing Date and ends after the Closing Date.
“Straddle
Period Return” is defined in Section 7.01(b)(ii).
“Subordinated
Notes” is defined in the Briscoe Credit Agreement.
“Support
Obligations” means any and all guarantees, letters of credit, bonds, sureties, deposits and other credit assurances of a comparable
nature (including cash posted as credit support) made or issued by or on behalf of a Seller or any of its Affiliates (other than the
Company) for the benefit of the Company, the Project, or any Project Asset.
“Survey”
means that certain ALTA/ACSM Land Title Survey executed on November 9, 2015 by Eric Brand R.P.L.S. No. 6414, Atwell LLC designated as
Briscoe County Wind Farm, Job No. 15000809.
“Tax
Information” is defined in Section 7.05(c).
“Tax
Proceeding” means any audit, examination, contest, litigation or other action relating to Taxes.
“Tax
Return” means any return, declaration, report, claim for refund, property rendition or information return or statement relating
to Taxes, including any schedule or attachment thereto and including any amendment thereof, filed or required to be filed with any Taxing
Authority.
“Taxes”
means any income taxes or similar assessments or any sales, excise, occupation, use, ad valorem, real or personal property, production,
severance, transportation, employment, payroll, escheatment and unclaimed property, franchise or other taxes imposed by any United States
federal, tribal, state or local (or any foreign or provincial) Taxing Authority, including any interest, penalties or additions attributable
thereto.
“Taxing
Authority” means, with respect to any Tax, the Governmental Entity (or political subdivision thereof) that imposes such Tax,
and the agency (if any) charged with the collection of such Tax for such Governmental Entity or subdivision.
“Third
Party” means any Person that is not a Party or an Affiliate of a Party.
12
“Title
Policies” means the Owner’s Policy of Title Insurance Issued as Policy No. O-5966-000020656 by Stewart Title Guaranty
Company dated December 23, 2014 and Owner’s Policy of Title Insurance Issued as Policy No. O-5966-000112964 by Stewart Title Guaranty
Company dated November 17, 2015.
“Trade
Control Laws” means any applicable trade or economic or financial sanctions or embargoes, in each case enforceable under Applicable
Law, Restricted Party lists issued by the respective Governmental Entities, and any similar Applicable Laws.
“Transaction
Documents” means, collectively, this Agreement, the Interests Assignment and each other agreement, instrument, certificate
or document executed or to be executed by the Parties in connection with the transactions contemplated hereby.
“Transfer
Taxes” means all sales, use, goods and services, value added, documentary, stamp, duty, gross receipts, excise, franchise,
transfer and conveyance Taxes and other similar Taxes, duties, fees or charges.
“Working
Capital Objection Resolution Date” is defined in Section 2.03(e).
Section
1.02 References and Construction.
(a)
The headings of any article, section or subsection of this Agreement are for convenience only and shall in no way modify, interpret or
construe the meaning of specific provisions of this Agreement. All article, section, subsection, schedule and exhibit references used
in this Agreement are to articles, sections, subsections, schedules and exhibits to this Agreement unless otherwise specified. The Exhibits
and Schedules attached to this Agreement constitute a part of this Agreement and are incorporated herein for all purposes.
(b)
The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder” and
words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited.
(c)
Unless the context otherwise requires, the terms defined in this Agreement which refer to a particular agreement, instrument or document
includes all renewals, extensions, modifications, amendments or restatements of such agreement, instrument or document; provided,
that nothing contained in this subsection shall be construed to authorize such renewal, extension, modification, amendment or restatement.
(d)
Unless the context otherwise requires, references to any Applicable Law shall be deemed to be references to such Applicable Law as amended,
modified or supplemented from time to time, and shall be deemed to include all rules or regulations promulgated thereunder.
(e)
The word “or” is not intended to be exclusive and shall be construed as meaning “and/or”. The word “includes”
and its derivatives shall be construed as meaning “includes, but is not limited to” and corresponding derivative expressions.
(f)
The Parties have participated jointly in negotiating and drafting this Agreement, and, in the event that an ambiguity or a question of
intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden
of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
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(g)
Except as otherwise provided in Section 9.01, whenever any action must be taken hereunder by a specified day or within a specified
period, such time period shall conclude at 11:59 p.m. Eastern Time on such day or the last day in such period; provided, that
if the last day in such period or the date specified, as the case may be, is not a Business Day, the applicable date or time period shall
be extended until the next Business Day.
(h)
Any reference to “days” (e.g., as a notice period or period of time for payment) shall mean calendar days unless the
term “Business Days” is used.
(i)
Words used or defined in the singular include the plural and vice versa.
(j)
All nouns, pronouns and variations thereof shall be deemed to refer to the singular or plural as the context may require.
(k)
Any liability of a Seller under this Agreement or any Transaction Document shall be on a several, and not joint or joint and several,
basis with any other Seller.
ARTICLE
II
PURCHASE AND SALE
Section
2.01 Purchase and Sale of the Company Interests. On the terms and subject to the conditions in this Agreement, at the Closing,
Sellers shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and accept from Sellers, all of Sellers’
respective right, title and interest in and to the Company Interests, free and clear of all Liens other than Permitted Equity Liens.
Section
2.02 Closing Payment. On the Closing Date, Buyer shall pay by wire transfer of immediately available funds to Sellers or their
designees in accordance with, and as set forth more specifically in, the Flow of Funds Memorandum, the Closing Payment. The “Closing
Payment” shall equal (a) fifty-three million Dollars ($53,000,000.00), plus (b) if the Estimated Closing Net Working
Capital Balance exceeds zero Dollars ($0), the Estimated Closing Net Working Capital Balance, minus (c) if the Estimated Closing
Net Working Capital Balance is less than zero Dollars ($0), the absolute value of the Estimated Closing Net Working Capital Balance,
minus (d) if the Closing Unpaid Indebtedness Amount exceeds zero Dollars, the Closing Unpaid Indebtedness Amount.
Section
2.03 Post-Closing Purchase Price Adjustment.
(a)
Sellers have prepared and delivered the statement attached hereto as Exhibit F (such statement, the “Estimated Closing
Net Working Capital Statement”), which sets forth Sellers’ good faith estimates and calculations, in accordance with
the accounting policies, procedures and methodologies set forth on Exhibit E (the “Accounting Principles”),
of (i) (1) the amount of the Current Assets as of the Closing Date and (2) the amount of the Current Liabilities as of the Closing Date
in each case as determined without duplication (the difference between the amount set forth in the preceding clause (1) minus
the amount set forth in the preceding clause (2), the “Estimated Closing Net Working Capital Balance”), (ii)
(1) the amount of Indebtedness of the Company as of the Closing Date which, for the avoidance of doubt, does not include any Current
Liabilities incorporated in the calculation of the Estimated Closing Net Working Capital Balance and (2) the amount of Indebtedness of
the Company to be paid pursuant to the Payoff Letters concurrently with the Closing (the difference, if any, between the amount set forth
in the preceding clause (1) minus the amount set forth in the preceding clause (2), the “Closing Unpaid
Indebtedness Amount”) and (iii) based on such calculations, the Closing Payment. Sellers shall provide to Buyer reasonable
supporting calculations, documents, working papers, and any other information in Sellers’ possession which is reasonably requested
by Buyer in order to verify the Estimated Closing Net Working Capital Statement. On or prior to Closing, Sellers shall establish and
fund the Sellers’ Account in an amount equal to seven hundred thousand Dollars ($700,000) or such lesser amount as may be agreed
by the Parties which shall be used to make all payments (if any) which may be required to be made by Sellers pursuant to this Section
2.03.
14
(b)
As promptly as practical, but in any event on or before the date that is ninety (90) days after the Closing Date, Buyer shall prepare
and deliver to Sellers a reasonably detailed statement (the “Actual Closing Net Working Capital Statement”) setting
forth Buyer’s good faith calculation, in accordance with the Accounting Principles, of (1) the amount of Current Assets as of the
Closing Date and (2) Current Liabilities as of the Closing Date in each case as determined without duplication (the difference between
the amount described in the preceding clause (1), minus the amount described in the preceding clause (2), the “Actual
Closing Net Working Capital Balance”). Buyer shall provide to Sellers reasonable supporting calculations, documents, working
papers, and any other information reasonably requested by Sellers in order to verify the Actual Closing Net Working Capital Statement.
(c)
The Actual Closing Net Working Capital Statement and the Actual Closing Net Working Capital Balance shall become final and binding upon
the Parties at 5:00 p.m. Eastern Time on the thirtieth (30th) day following the date on which the Actual Closing Net Working
Capital Statement was delivered to Sellers unless Sellers deliver written notice of disagreement with such Actual Closing Net Working
Capital Statement (an “Objection Notice”) to Buyer prior to such date.
(d)
If an Objection Notice is not delivered by the end of such thirty (30) day period or Sellers agree with the Actual Closing Net Working
Capital Statement, then if (i) the Actual Closing Net Working Capital Balance is less than the Estimated Closing Net Working Capital
Balance by fifty thousand Dollars ($50,000) or more, Sellers shall pay to Buyer the lesser of (x) the amount of such difference and (y)
seven hundred thousand Dollars ($700,000), or (ii) the Actual Closing Net Working Capital Balance is greater than the Estimated Closing
Net Working Capital Balance by fifty thousand Dollars ($50,000) or more, Buyer shall pay to Sellers’ Account the lesser of (x)
the amount of such difference and (y) seven hundred thousand Dollars ($700,000). Such payment shall be made within ten (10) Business
Days of the earlier of (i) the end of such thirty (30) day period or (ii) the date upon which Sellers agree with the Actual Closing Net
Working Capital Statement, as applicable.
15
(e)
If an Objection Notice is delivered to Buyer, then the Actual Closing Net Working Capital Statement (as updated in accordance with the
resolution procedures set forth in this Section 2.03(e)) shall become final and binding upon Sellers and Buyer on the earlier
of (i) the date Sellers and Buyer resolve in writing any differences they have with respect to the matters specified in the Objection
Notice or (ii) the date any disputed matters are finally resolved in writing by the Accounting Firm (the “Working Capital Objection
Resolution Date”). During the thirty (30) day period following the delivery of an Objection Notice, Sellers and Buyer shall
seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Objection Notice.
If at the end of such thirty (30) day period, Sellers and Buyer have not resolved in writing the matters specified in the Objection Notice,
Sellers and Buyer shall submit to the Accounting Firm only matters that remain in dispute. Sellers and Buyer shall use reasonable efforts
to cause the Accounting Firm to render a written decision resolving the matters submitted to the Accounting Firm within thirty (30) days
of the receipt of such submission. The Accounting Firm’s decision shall be (x) based solely on written submissions by Sellers and
Buyer and their respective Representatives (and it shall not permit or authorize discovery or hear testimony) and not by independent
review, (y) limited to whether calculations of amounts are in accordance with the Accounting Principles and the terms of this Agreement,
and (z) final and binding on all of the Parties absent manifest error. The Accounting Firm may not assign a value greater than the greatest
value for such item claimed by any Party or smaller than the smallest value for such item claimed by any Party.
(f)
Within ten (10) Business Days after the Working Capital Objection Resolution Date, if (i) the Actual Closing Net Working Capital Balance
is less than the Estimated Closing Net Working Capital Balance by fifty thousand Dollars ($50,000) or more, Sellers shall pay to Buyer
the lesser of (x) the amount of such difference and (y) seven hundred thousand Dollars ($700,000), or (ii) the Actual Closing Net Working
Capital Balance is greater than the Estimated Closing Net Working Capital Balance by fifty thousand Dollars ($50,000) or more, Buyer
shall pay to Sellers’ Account the lesser of (x) the amount of such difference and (y) seven hundred thousand Dollars ($700,000).
(g)
During the period of time after the Closing Date through the Working Capital Objection Resolution Date, Buyer shall afford, and shall
cause the Company to afford, to Sellers and their respective Representatives (including any accountants, counsel or financial advisers
retained by Sellers in connection with the preparation of the Estimated Closing Net Working Capital Statement), with reasonable access,
during normal business hours, and at no expense to Buyer, to the financial books and records of the Company and its respective Representatives
(including the work papers of any accountants) solely to the extent such financial books and records are relevant to the preparation
of the Actual Closing Net Working Capital Statement and Buyer’s calculation of the Actual Closing Net Working Capital Balance.
(h)
The fees, costs and expenses of the Accounting Firm incurred pursuant to this Section 2.03 shall be borne by Sellers, on the one
hand, and Buyer, on the other hand, in proportion to the final allocation made by such Accounting Firm of the disputed items weighted
in relation to the claims made by Sellers and Buyer, such that the prevailing Parties pay the lesser proportion of such fees, costs and
expenses.
16
Section
2.04 Tax Treatment. In accordance with Revenue Ruling 99-6 (situation 2), the transfer of the Company Interests by Sellers to
Buyer shall be treated for federal income tax purposes: (a) for Sellers as a sale of partnership interests and (b) for Buyer as a purchase
of all Assets of the Company immediately following a liquidating distribution of all the Assets of the Company to Sellers. Within sixty
(60) days following the Closing Date, Buyer shall prepare and deliver to Sellers a proposed schedule (the “Purchase Price Allocation
Schedule”) to allocate the Purchase Price among the Company Interests and, further, in accordance with the tax principles of
Section 1060 or Sections 743, 751 and 755 of the Code and the Treasury Regulations promulgated thereunder (and any comparable or similar
provisions of applicable state and local Tax law), as the case may be, to allocate the portion of the Purchase Price allocated to the
Company Interests among the separate classes of Assets of the Company. The Parties shall thereafter have thirty (30) days to negotiate
a final Purchase Price Allocation Schedule; provided, that if the Parties are unable to agree in writing on a final Purchase Price
Allocation Schedule within such thirty (30)-day period, Sellers and Buyer shall submit to the Accounting Firm only matters that remain
in dispute. Sellers and Buyer shall use reasonable efforts to cause the Accounting Firm to render a written decision resolving the matters
submitted to the Accounting Firm within thirty (30) days of the receipt of such submission. The fees, costs and expenses of the Accounting
Firm incurred pursuant to this Section 2.04 shall be borne by Sellers, on the one hand, and Buyer, on the other hand, in proportion
to the final allocation made by such Accounting Firm of the disputed items weighted in relation to the claims made by Sellers and Buyer,
such that the prevailing Parties pay the lesser proportion of such fees, costs and expenses. The Accounting Firm may not assign a value
greater than the greatest value for such item claimed by any Party or smaller than the smallest value for such item claimed by any Party.
The Accounting Firm’s decision shall be (x) based solely on written submissions by Sellers and Buyer and their respective Representatives
(and it shall not permit or authorize discovery or hear testimony) and not by independent review, and (y) final and binding for purposes
of the Purchase Price Allocation Schedule on all of the Parties absent manifest error. In the event of any subsequent adjustment made
to the Purchase Price pursuant to the terms of this Agreement, Sellers and Buyer agree to adjust the Purchase Price Allocation Schedule
in a reasonable manner to reflect such adjustment.
ARTICLE
III
CLOSING
Section
3.01 Time and Place of the Closing. Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated
by this Agreement (the “Closing”) shall take place concurrently with the execution and delivery of this Agreement
on the date hereof (the “Closing Date”). The Closing shall take place without the requirement of any Party being physically
present at the Closing. Instead, each Party will participate in the Closing by delivery of its required documents electronically by exchange
of PDF copies of executed documents under appropriate closing instructions, oral or written, or through its respective counsel or other
agents. The Closing shall be deemed to be effective at 12:01 a.m., Eastern Time, on the Closing Date.
Section
3.02 Deliveries of Sellers at the Closing. At the Closing, and concurrently with the execution of this Agreement, Sellers shall
deliver or cause to be delivered to Buyer the following:
(a)
an Internal Revenue Service Form W-9 from each Seller (or, with respect to any Seller that is disregarded for U.S. federal income tax
purposes, such Seller’s regarded owner(s));
17
(b)
the Interests Assignment, duly executed by each Seller;
(c)
evidence of resignations or removals, effective as of the Closing, of each individual who is currently a director, manager or officer
of the Company appointed or designated to such positions by a Seller or its Affiliates and revocations of any powers of attorney issued
by the Company (or by any Seller or any Affiliate on behalf of the Company), if any;
(d)
a good standing certificate for the Company, dated not more than ten (10) days prior to the Closing Date, issued by the Secretary of
State of Delaware;
(e)
a certificate from each Seller, duly executed by an authorized representative of such Seller, setting forth and attesting to (i) such
Seller’s authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated
hereby and (ii) the incumbency and signature of each representative of such Seller executing this Agreement and each other agreement
executed by such Seller pursuant hereto;
(f)
the Payoff Letters, duly executed by the parties thereto, together with evidence reasonably satisfactory to Buyer that all mortgages,
security interests and other Liens held by the applicable lender will be released, discharged and terminated concurrently with the Closing;
(g)
the Juwi Consent, duly executed by the parties thereto; and
(h)
evidence reasonably acceptable to Buyer that, for purposes of Section 26 of each BNSF License, BNSF Railway Company will agree to Buyer’s
acquisition of the Company Interests upon receiving an executed copy of the Interests Assignment.
Section
3.03 Deliveries of Buyer at the Closing. At the Closing, and concurrently with the execution of this Agreement, Buyer shall deliver
or cause to be delivered to Sellers (or their designees as set forth below) the following:
(a)
the Closing Payment, by wire transfer of immediately available funds, in accordance with, and as set forth more specifically in, the
Flow of Funds Memorandum;
(b)
a copy of the Binder Agreement, duly executed by the parties thereto;
(c)
the Interests Assignment, duly executed by Buyer;
(d)
a good standing certificate for Buyer, dated not more than ten (10) days prior to the Closing Date, issued by the Secretary of State
or equivalent Governmental Entity in the state of formation of Buyer; and
(e)
a certificate, duly executed by an authorized representative of Buyer, setting forth and attesting to (i) Buyer’s authority to
execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby and (ii) the
incumbency and signature of each representative of Buyer executing this Agreement and each other agreement executed by Buyer pursuant
hereto.
18
ARTICLE
IV
REPRESENTATIONS AND WARRANTIES OF SELLERS REGARDING SELLERS AND THE COMPANY INTERESTS
Each
Seller, severally, and not jointly, and only with respect to itself, hereby represents and warrants to Buyer that the statements contained
in this Article IV are true and correct as of the Closing Date (except where a representation or warranty is made herein as of
a specified date, in which case as of such date):
Section
4.01 Organization and Good Standing. Such Seller (i) is a limited liability company or corporation duly organized or incorporated,
validly existing and in good standing under the laws of its state of organization or incorporation and (ii) has all requisite limited
liability company or corporate power and authority to own, lease and operate its properties and assets and to carry on its business as
presently conducted. Such Seller is duly qualified and in good standing to carry on its business where required by Applicable Law to
be so qualified, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material
adverse effect on such Seller’s ability to consummate the transactions contemplated by this Agreement and the other Transaction
Documents.
Section
4.02 Title to Company Interests.
(a)
Immediately prior to Closing, (a) such Seller is the sole record and beneficial owner of all of the Company Interests reflected as being
owned by it on Schedule 4.02(a). The Company Interests constitute all of the Equity Interests of the Company.
(b)
Such Company Interests (i) have been and are duly authorized and validly issued and are fully paid and non-assessable, (ii) are owned
by such Seller free and clear of all Liens, other than Permitted Equity Liens and (iii) have not been issued in violation of any conversion
right, purchase or call option, right of first refusal, redemption right, repurchase right, subscription right, preemptive right or any
other similar right, or restriction on transfer. Except as set forth in (i) the Briscoe Financing Documents which will be terminated
at Closing and (ii) the Company’s Charter Documents, such Company Interests are not subject to any preemptive or other outstanding
subscriptions, options, convertible securities, warrants, stock appreciation rights, calls or any other Contracts of any character (x)
granting rights to purchase or otherwise acquire any of the Company Interests, (y) obligating such Seller to transfer any of the Company
Interests or (z) obligating the Company to issue, any shares of capital stock, Equity Interests, or other securities, including securities
convertible into, exchangeable or exercisable for shares of capital stock, Equity Interests or other securities of the Company.
(c)
There are no (i) Equity Interests convertible into, exchangeable or exercisable for shares of Equity Interests or other securities of
the Company, (ii) other than the Briscoe Financing Documents which will be terminated at Closing, bonds, debentures, notes or other indebtedness
that entitle the holders to vote (or convertible into, exchangeable or exercisable for, securities that entitle the holders to vote)
with holders of Equity Interests or other securities of the Company on any matter, or (iii) outstanding obligations of the Company to
repurchase, redeem or otherwise acquire the Company Interests.
19
(d)
Except for (i) the Briscoe Financing Documents which will be terminated at Closing, (ii) the Company’s Charter Documents, and (iii)
as otherwise set forth on Schedule 5.04, none of the Company Interests are subject to any voting trust agreement or other, registration
rights agreement, pledge agreement, buy sell agreements, power of attorney or similar Contract, option, proxy, right of first refusal
or preemptive right or understanding, including any Contract restricting voting, allocation and distribution rights or transfer rights
of the Company Interests. There are no outstanding or authorized appreciation, phantom interests, profit participations or similar rights
or commitments of any character providing economic benefits based, directly or indirectly, on the value or price of the Company Interests.
Section
4.03 Authority. Such Seller has all requisite limited liability company or corporate power and authority and has taken all limited
liability company or corporate action necessary to execute, deliver and perform its obligations under this Agreement and each other Transaction
Document to which it is a party and to consummate the transactions contemplated hereby and thereby. This Agreement and each Transaction
Document to which such Seller is a party has been duly executed and delivered by such Seller and constitutes (assuming due authorization,
execution and delivery by Buyer and any other Persons a party thereto), a valid and legally binding obligation of such Seller, enforceable
against such Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting or relating to the enforcement of creditors’ rights generally and the application of general principles
of equity (regardless of whether that enforceability is considered in a Proceeding at law or in equity) (the “Enforceability
Exceptions”).
Section
4.04 Non-Contravention. Assuming the accuracy of the representations and warranties made by Buyer in Article VI, the execution,
delivery and performance by such Seller of this Agreement and each other Transaction Document to which such Seller is a party, and the
consummation by such Seller of the transactions contemplated hereby and thereby, will not (i) violate or result in a breach of, or default
under, any provision of such Seller’s Charter Documents, (ii) violate any Applicable Law which is applicable to such Seller, (iii)
with or without notice, lapse of time or both, result in a violation or breach of, or an acceleration or termination of (or give rise
to a right of termination, cancellation, or acceleration of any right or obligation) or default under, any material Contract to which
such Seller is a party, (iv) except for notifications relating to changing any contact or notice information and as set forth on Schedule
5.04, require such Seller to obtain or make any consent, registration, approval, order or authorization of, or filing with or notice,
declaration, registration or designation to, any Governmental Entity or any other Person, or (v) result in the creation or imposition
of any Lien on the Company Interests (other than Permitted Equity Liens), except, in the case of clause (iii), which would not
have a material adverse effect on such Seller’s ability to perform its obligations under, and consummate the transactions contemplated
by, this Agreement and the other Transaction Documents.
Section
4.05 Proceedings; Bankruptcy.
(a)
There are no Proceedings pending or threatened in writing (or, to such Seller’s Knowledge, orally) against or affecting such Seller
at law or in equity, by or before any Governmental Entity, and such Seller is not bound by any Order, in each case that would prevent,
materially delay, or materially adversely affect such Seller’s ability to perform its obligations under this Agreement or any other
Transaction Document to which it is a party or to consummate the transactions contemplated hereby and thereby.
20
(b)
Seller has not filed any voluntary petition in bankruptcy or been adjudicated as bankrupt or insolvent, filed any petition or answer
seeking any reorganization, liquidation, dissolution or similar relief under any federal bankruptcy act, insolvency, or other debtor
relief law, or sought or consented to or acquiesced in the appointment of any trustee, receiver, conservator or liquidator of all or
any substantial part of its respective properties. No court of competent jurisdiction has entered an Order, judgment or decree approving
a petition filed against Seller seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any federal bankruptcy act, insolvency or other debtor relief law, and no other liquidator has been appointed for Seller
or of all or any substantial part of its properties.
Section
4.06 Brokers’ Fees. Other than any arrangements pursuant to which the fees and commissions thereunder will be paid in full
on the Closing Date as detailed in the Flow of Funds Memorandum, neither such Seller nor the Company has entered into any arrangement
with any Person that would obligate Buyer, any of its Affiliates, or the Company to pay any commission, brokerage fee, success fee, “finder’s
fee” or other similar fees or commissions in connection with the transactions contemplated by this Agreement.
ARTICLE
V
REPRESENTATIONS AND WARRANTIES OF SELLERS REGARDING THE COMPANY
Each
Seller, hereby severally, and not jointly, represents and warrants to Buyer that the statements contained in this Article V are
true and correct as of the Closing Date (except where a representation or warranty is made herein as of a specified date, in which case
as of such date):
Section
5.01 Organization and Good Standing. The Company (i) is a limited liability company duly organized, validly existing and in good
standing under the laws of its state of organization and (ii) has all requisite limited liability company or corporate power and authority
to own, lease and operate its properties and assets and to carry on its business as presently conducted. The Company is duly qualified
and in good standing to carry on its business where required by Applicable Law to be so qualified.
Section
5.02 No Subsidiaries. The Company has no subsidiaries and does not own or hold, beneficially or of record, any Equity Interests
or other securities in any Person.
Section
5.03 Charter Documents. True, complete and correct copies of the Charter Documents of the Company in effect as of the Closing
Date have been Made Available to Buyer, each of which is in full force and effect.
Section
5.04 Non-Contravention. Assuming the accuracy of the representations and warranties made by Buyer in Article VI, the execution,
delivery and performance by such Seller of this Agreement and each other Transaction Document to which such Seller is a party, and the
consummation by such Seller of the transactions contemplated hereby and thereby, will not (i) violate or result in a breach of, or default
under, any provision of any of the Company’s Charter Documents, (ii) violate any Applicable Law which is applicable to the Company,
(iii) except as set forth on Schedule 5.04, requires the consent of any Person under, or with or without notice, lapse of time
or both, result in a violation or breach of, constitute a default under, result in the acceleration or termination of, or give rise to
any right of termination, cancellation, or acceleration of any right or obligation under, any Material Contract or Real Property Agreement,
or (iv) result in the creation or imposition of any Lien (except for Permitted Liens) on any assets of the Company or any Lien (except
for Permitted Equity Liens) on the Company Interests, except, in the case of clause (iii), which would not be materially adverse
to the Company, taken as a whole.
21
Section
5.05 Proceedings; Bankruptcy.
(a)
Other than as set forth on Schedule 5.05(a), there are no (i) material Proceedings pending or threatened in writing (or, to such
Sellers’ Knowledge, orally) against the Company, at law or in equity, by or before any Governmental Entity, or (ii) outstanding
Orders binding upon the Company or any of its Assets or the Project which would adversely affect in any material respect the Company
or the Project.
(b)
The Company has not filed any voluntary petition in bankruptcy or been adjudicated as bankrupt or insolvent, filed any petition or answer
seeking any reorganization, liquidation, dissolution or similar relief under any federal bankruptcy act, insolvency, or other debtor
relief law, or sought or consented to or acquiesced in the appointment of any trustee, receiver, conservator or liquidator of all or
any substantial part of its respective properties, nor has any such proceeding been commenced by any other Person against the Company.
No court of competent jurisdiction has entered an Order, judgment or decree approving a petition filed against the Company seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any federal bankruptcy act,
insolvency or other debtor relief law, and no other liquidator has been appointed for the Company or of all or any substantial part of
its properties.
Section
5.06 Financial Statements; No Undisclosed Liabilities.
(a)
True, correct and complete copies of (i) the audited balance sheet and income statement as of December 31, 2023 and December 31, 2024
of the Company and the related statements of operations, changes in members’ equity, if any, and cash flows for the years then
ended (collectively, the “Audited Financial Statements”) and (ii) the unaudited balance sheet and income statement
as of December 31, 2025 (the “2025 Balance Sheet Date”) and February 28, 2026 (the “Interim Balance Sheet
Date”) of the Company (the “Interim Financial Statements” and together with the Audited Financial Statements,
the “Financial Statements”), are attached to Schedule 5.06(a).
(b)
The Financial Statements (i) have been, except to the extent otherwise disclosed in the Financial Statements, prepared (x) from and accurately
reflect in all material respects the books and records of the Company and (y) in accordance with GAAP applied on a consistent basis and
without modification throughout the periods presented, subject, in the case of the Interim Financial Statements, to normal (in amount
and nature) and recurring period-end adjustments and the absence of footnotes, (ii) are correct and complete in all material respects
as of the date thereof, and (iii) fairly present in all material respects the financial position of the Company as of the date thereof
and the results of operations, income and cash flows for the period indicated, subject to the absence of notes and normal (in amount
and nature) and recurring fiscal year-end adjustments.
22
(c)
Since the 2025 Balance Sheet Date, (i) the Company has operated in the ordinary course of its business and (ii) there has not been a
Material Adverse Effect.
(d)
The Company does not have any Liabilities of any nature, whether accrued, absolute, contingent, matured, unmatured, due or to become
due or otherwise that would be required to be set forth or reserved against in a balance sheet prepared in accordance with GAAP except
Liabilities (i) that are specifically and accurately set forth, reflected, disclosed or reserved against in the Financial Statements,
(ii) incurred in connection with this Agreement or the transactions contemplated hereby, (iii) incurred in the ordinary course of business
consistent with past practice since the Interim Balance Sheet Date and which are not, individually or in the aggregate, (x) material
in amount or impact on the operations or financial condition of the Company, or (y) attributable to any material breach, non-compliance,
or violation of any Contract or Applicable Law, (iv) will be discharged or paid off concurrently with the Closing, (v) constitute Current
Liabilities taken into account in the Estimated Closing Net Working Capital Statement or (vi) are disclosed on Schedule 5.06(d).
Section
5.07 Tax Matters.
(a)
All income Tax Returns and other material Tax Returns required under any Applicable Law to have been filed by, or with respect to, the
Company, on or prior to the Closing Date, have been filed (taking into account valid extensions), and all Tax Returns that have been
filed by, or with respect to, the Company are accurate and complete in all material respects.
(b)
All Taxes required under any Applicable Law to have been paid by, or with respect to, the Company, on or prior to the Closing Date, have
been paid.
(c)
The Company has not received any written notice of any currently pending Proceeding for the assessment or collection of any Taxes.
(d)
There are no Liens (other than Permitted Liens) for Taxes against any Assets of the Company.
(e)
No claim that is currently unresolved has been made by any Taxing Authority in a jurisdiction where the Company does not file Tax Returns
that the Company is subject to taxation in such jurisdiction.
(f)
No Tax Proceeding with respect to Taxes of the Company is pending or, to Sellers’ Knowledge, being threatened.
(g)
The Company has materially complied with its obligations under Applicable Law to deduct, withhold and timely pay to the appropriate Taxing
Authority all Taxes required under Applicable Law to have been deducted, withheld or paid in connection with amounts owing to any employee,
former employee, independent contractor, creditor, stockholder or other third party, and the Company has materially complied with all
reporting and record keeping requirements under Applicable Law in respect of Taxes.
23
(h)
(i) There is not currently in effect a waiver extending the statutory period of limitations applicable to any material Tax imposed on
the Company nor (ii) has the Company agreed to any extension of time with respect to a Tax assessment or deficiency which extension is
currently in effect (except for automatic extensions of time to file income Tax Returns obtained in the ordinary course of business).
(i)
The Company is treated as a partnership for U.S. federal income tax purposes.
(j)
The Company has not participated in a “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4(b).
Notwithstanding
anything else to the contrary in this Agreement, the representations and warranties in this Section 5.07 are the sole representations
and warranties in this Agreement with respect to Tax matters of Sellers or the Company. The representations and warranties in this Section
5.07 are made only with respect to Tax periods (or the portion thereof) ending on or prior to the Closing Date and shall not be construed
as a representation or warranty with respect to any Taxes of Buyer or its Affiliates (including the Company) attributable to any Tax
period (or portion thereof) beginning after the Closing Date or any Tax positions taken by Buyer or its Affiliates (including the Company)
in any Tax period (or portion thereof) beginning after the Closing Date.
Section
5.08 Contracts.
(a)
The following Contracts in force as of the Closing Date and to which the Company is a party or by which the Company or the Project Assets
are bound (excluding (1) any Transaction Document, (2) any Permit, (3) any Real Property Agreement, and (4) the Briscoe Financing Documents,
the Subordinated Notes, and each other Contract which is being terminated in accordance with this Agreement on or before the Closing
Date) are referred to, collectively, as the “Material Contracts”:
(i)
Contracts for the purchase, exchange, sale or delivery of electric energy, Environmental Attributes, capacity, ancillary services or
other similar attributes from the Project, other than Contracts to sell any of the foregoing via spot transactions or on a merchant basis;
(ii)
Contracts in respect of shared transmission or shared interconnection facilities for the Project;
(iii)
Contracts for the interconnection of the Project to the grid or scheduling, distribution, or transmission of electricity from the Project;
(iv)
Contracts for operation and maintenance services for the Project that are material to the operation and maintenance of the Project;
24
(v)
Contracts for administrative, management or other back-office services for the Project that are material to the administration and management
of the Project;
(vi)
Contracts for the supply of turbines, transformers, inverters, or other major equipment for the Project with a value in excess of three
hundred fifty thousand Dollars ($350,000) under which the period for the Company to make warranty claims has not expired;
(vii)
other than Contracts for supply or procurement of equipment or the sale of electric energy, Environmental Attributes, capacity, ancillary
services or other similar attributes from the Project via spot transactions or on a merchant basis, Contracts which provide for future
payments to or from the Company in excess of two hundred fifty thousand Dollars ($250,000) in any calendar year or five hundred thousand
Dollars ($500,000) in the aggregate during the remaining term of such Contract;
(viii)
Contracts pursuant to which the Company has created, incurred, assumed or guaranteed any Indebtedness;
(ix)
Contracts pursuant to which the Company has created, incurred, assumed or guaranteed any capitalized lease obligations;
(x)
Contracts pursuant to which the Company provides any surety, pledge, guaranty, bond, letter of credit or other credit support;
(xi)
Contracts (A) for the sale of any Project Asset or (B) that grant a Third Party a right or option to purchase any Project Asset, other
than, in each case, Contracts for the sale of electric energy, Environmental Attributes, capacity, ancillary services or other similar
attributes from the Project via spot transactions or on a merchant basis or any other Contracts entered into in the ordinary course of
business relating to Project Assets with a value of less than two hundred fifty thousand Dollars ($250,000) individually;
(xii)
Affiliate Contracts;
(xiii)
Contracts for financial commodity, currency or interest rate hedging arrangements or financial commodity purchase and sale Contracts,
including any outstanding futures, swap, collar, put, call, floor, cap, option or other similar Contract;
(xiv)
Contracts for Tax abatements or to make payments in lieu of Taxes;
(xv)
Contracts creating, forming or governing a partnership, joint venture, joint development, limited liability company or similar arrangement
with a third party of which the Company is a party, partner or member, including any arrangement or agreement to share profits, losses,
costs or liabilities with any other Person (other than the Charter Documents of the Company);
(xvi)
Contracts with any Governmental Entity;
25
(xvii)
each non-competition, non-interference, non-solicitation or similar Contract that purports to limit in any material respect the ability
of the Company from operating or doing business in any line of business or geographical location;
(xviii)
Contracts that are employment agreements between the Company and any employee;
(xix)
any Contract pursuant to which the Company is granting or being granted any Intellectual Property license which is material to the business
of the Company as currently being conducted (excluding Contracts pursuant to which the Company is receiving services and is granting
Intellectual Property licenses in the ordinary course of business in connection with the receipt of such services); and
(xx)
Contracts the purpose of which is the settlement, release, compromise or waiver by the Company of any material rights or claims it has
against any other Person or any liabilities of any other Person to the Company.
(b)
Sellers have Made Available to Buyer true, correct and complete copies of all Material Contracts, including any amendments, supplements,
waivers and change orders thereto.
(c)
Each Material Contract is (i) a valid and binding agreement of the Company and, to Sellers’ Knowledge, each other party thereto,
(ii) in full force and effect, and (iii) enforceable against the Company in accordance with its terms and, to Sellers’ Knowledge,
each other party thereto, except in each case to the extent that enforceability may be limited by the Enforceability Exceptions.
(d)
Except as set forth on Schedule 5.08(d), neither the Company nor, to Sellers’ Knowledge, any other party thereto, is in
material breach or material default under any Material Contract.
(e)
Except as set forth on Schedule 5.08(e), (i) the Company has not received nor made any written claim for indemnification or liquidated
damages pursuant to any Material Contract which remains outstanding and (ii) there are no past due material monetary obligations of the
Company under any Material Contract that remains unpaid.
(f)
To Sellers’ Knowledge, no event, act, circumstance or condition exists (including a force majeure event), which, with notice or
the lapse of time or both, would reasonably be expected to result in a right of any Person to terminate, amend, modify, accelerate, suspend
or revoke any Material Contract or constitute a material breach of any Material Contract, except where the exercise of any such right
or material breach of such Material Contract would not reasonably be expected to be materially adverse to the Company. No Person has
exercised or threatened to exercise in writing (or to Sellers’ Knowledge, orally) any right of termination, cancellation or non-renewal
of any Material Contract.
26
Section
5.09 Real Property; Project Assets.
(a)
The Company does not own in fee any real property. The Company has good and indefeasible title, whether in lease, easement or otherwise,
to all Real Property, free and clear of all Liens other than Permitted Liens. Neither the Company nor Sellers have received written notice
of any actual or pending Proceedings of condemnation and, to Sellers’ Knowledge, there are no Proceedings of condemnation threatened
in writing with respect to any of the Real Property.
(b)
Sellers have Made Available to Buyer copies of all Real Property Agreements in their possession. No Real Property Agreement that has
not been Made Available to Buyer contains any provision that would affect, in any material adverse respect, the operation of the Project,
in accordance with past practice, after the Closing Date. Each Real Property Agreement constitutes a valid, binding and enforceable obligation
of the Company and, to Sellers’ Knowledge, each other party thereto, except in each case to the extent that enforceability is limited
by the Enforceability Exceptions.
(c)
The operation of the Project complies in all material respects with all recorded third-party restrictions, covenants, and easements affecting
the Real Property, as disclosed in the Title Policies and the Survey.
(d)
Except as set forth on Schedule 5.09(d), (i) neither the Company nor, to Sellers’ Knowledge, any other party thereto, is
in material default or material breach of or under any Real Property Agreement and (ii) to Sellers’ Knowledge, no condition exists,
which, with notice or lapse of time or both, would constitute a material default or material breach by the Company under any Real Property
Agreement.
(e)
Except for Permitted Liens or as otherwise provided in the Real Property Agreements, the Company has not subleased or otherwise granted
to any Person any right or option to use or occupy any portion of the Real Property which has a material and adverse effect on Company’s
use of such Real Property as currently being used for the Project. Except as set forth on Schedule 5.09(e), the Company has not
received nor made any written indemnification claim pursuant to any Real Property Agreement which remains outstanding.
(f)
Sellers have Made Available to Buyer true, accurate and complete copies of the Title Policies and Survey.
(g)
The Company is the sole owner of the Project and has good and marketable title to, or otherwise has the right to use pursuant to a valid
and binding Contract, all of its material tangible Project Assets, free and clear of all Liens (other than Permitted Liens). The Project
Assets constitute, all of the material properties, Assets, rights and Contracts used to operate the Project as operated. The material
tangible Project Assets (x) are, except as set forth on Schedule 5.09(g), in all material respects in good working order, condition
and repair, and capable of being used for their intended purposes (ordinary wear and tear excepted), and are usable in the ordinary course
of business; and (y) have been maintained in a manner consistent with prudent industry practices in all material respects.
27
Section
5.10 Permits. (a) The Company possesses all material Permits which are required under Applicable Law (including Environmental
Laws) to conduct the business of the Company as currently being conducted (the “Required Permits”) and (b) each such
Required Permit is final and in full force and effect and the Company is in compliance in all material respects with all such Required
Permits. Sellers have Made Available to Buyer true, correct and complete copies of all discretionary Required Permits and any amendments,
modifications, or supplements thereto. Except as set forth on Schedule 5.10, neither the Company nor Sellers have received any
written (or Sellers’ Knowledge, oral) notice, which remains uncured, from any Governmental Entity of any violation or suspension,
revocation, adverse modification, withdrawal, or enjoinment of any Required Permit or seeking to suspend, revoke, adversely modify, withdraw
or enjoin any Required Permit, and to Sellers’ Knowledge, there are no current facts, circumstances or conditions that would reasonably
be expected to result in the termination, non-renewal, revocation or material adverse modification of any Required Permit.
Section
5.11 Compliance with Laws. Except as set forth on Schedule 5.11, the business and operations of the Company and of the
Project are, and have since May 4, 2023 been conducted, in compliance in all material respects with all Applicable Laws and Orders. Neither
Sellers nor the Company have received any written (or to Sellers’ Knowledge, oral) notice, which remains uncured, from any Governmental
Entity alleging that the Company or the Project is in violation of, default under, or under investigation with respect to, any Applicable
Law and the Company has not received any written demand letter, administrative inquiry, or formal or informal complaint or claim from
any Governmental Entity which remains unresolved, except, in each case, as would not reasonably be expected to be, individually or in
the aggregate, material to the Company.
Section
5.12 Employee and Benefit Plan Matters.
(a)
The Company does not have, nor has ever had, any employees. The Company has no Liabilities with respect to any employees of any Seller
or any of their respective Affiliates.
(b)
The Company does not maintain, sponsor, contribute to or have any Liability (whether actual or contingent) with respect to, and has never
maintained, sponsored, contributed to or had any Liability (whether actual or contingent) with respect to, any Benefit Plan. The Company
does not have any contract, plan or commitment, whether or not legally binding, to create any Benefit Plan.
(c)
The Company does not contribute to or have an obligation to contribute to, or have any actual or potential liability in respect of, (i)
a plan subject to Title IV of ERISA (including a multiemployer plan within the meaning of Section 3(37) of ERISA), Section 302 of ERISA,
or Section 412 of the Code, (ii) a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c)
of the Code or (iii) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA.
(d)
There does not now exist, nor, to Sellers’ Knowledge, do any circumstances exist that could be expected to result in, any Liability
under or with respect to (i) Title IV of ERISA, (ii) Sections 302 and 502 of ERISA, (iii) Sections 412 and 4971 of the Code, (iv) any
Benefit Plan, or (v) any voluntary employees’ beneficiary association (as described in Section 501(c)(9) of the Code), in each
case, that could be a Liability of the Company following the Closing Date. There does not now exist, nor, to Sellers’ Knowledge,
do any circumstances exist that could be expected to result in, any Liability for failure to comply with the provisions of Section 601,
et seq. of ERISA and Section 4980B of the Code and Section 701, et seq. of ERISA and Subtitle K of the Code that could be a Liability
of the Company following the Closing Date.
28
Section
5.13 Environmental.
(a)
The business and operations of the Company are, and at all times since August 16, 2021 has been, in compliance in all material respects
with all Environmental Laws.
(b)
None of Sellers or the Company or any of their respective Affiliates has received any written (or, to Sellers’ Knowledge, oral)
notice from any Governmental Entity alleging that the Company or the Project is in violation of, or has incurred any material Liability
under, any Environmental Law, that remains unresolved in any material respect.
(c)
Since August 16, 2021, neither the Company nor, to Sellers’ Knowledge, any other Person has Released, handled, stored, transported,
disposed of, or arranged for transportation or disposal of, any Hazardous Substance at, to or from the Real Property subject to the Leases
in material violation of any Environmental Law.
(d)
Except as set forth in the Material Contracts, the Company has not assumed, whether by contract or, to Sellers’ Knowledge, operation
of law, any Liabilities or obligations of any other Person under Environmental Law.
(e)
Except as set forth in the Permits, neither the Company nor the Project is subject to any Orders of any Governmental Entity for which
any material obligation is pending, or any material Liability remains outstanding, under any Environmental Laws.
(f)
No Proceeding under Environmental Laws is pending or threatened in writing (or, to Sellers’ Knowledge, orally) against the Company
or, to Sellers’ Knowledge, the Real Property subject to the Leases that would reasonably be expected to have a material adverse
impact on the Company or the Project.
Section
5.14 Intellectual Property. The Company owns or has a valid license or other valid rights to use all material Intellectual Property
that is necessary to conduct its business (including the ownership, operation or routine maintenance of the Project). The Company’s
conduct of its business in the ordinary course does not misappropriate or infringe on the Intellectual Property of any other Person,
except and to the extent as would not, individually or in the aggregate, be material to the Company. There is no Proceeding pending or
threatened in writing (or, to Sellers’ Knowledge, orally) alleging that the Company is misappropriating or infringing on any Intellectual
Property of any Person. To Sellers’ Knowledge, no Person is misappropriating or infringing on the Intellectual Property of the
Company in any material respect.
29
Section
5.15 Contracts with Sellers and Their Affiliates; Intercompany Accounts. Schedule 5.15 sets forth a true, correct and complete
list of each Affiliate Contract in effect as of the Closing Date. Except for the Affiliate Contracts, no Seller nor any of its Affiliates
or any manager, officer, employee, director or member of any Seller or any of its Affiliates (i) is a party to any Contract or transaction
with the Company with ongoing obligations or (ii) has any economic interest in any property, real or personal or mixed, tangible or intangible,
used in or pertaining to the Project or the Company. Except as set forth on Schedule 5.15, all Intercompany Accounts have been
settled or transferred in accordance with Section 7.08 and the Company, on the one hand, and Sellers and their Affiliates (other
than the Company), on the other hand, do not have any further liability to one another in respect of such Intercompany Accounts.
Section
5.16 Support Obligations. Schedule 5.16 sets forth a true, correct and complete list of all Support Obligations outstanding
and issued by, on behalf or for the benefit of or otherwise relating to the Company and the Project. True, correct and complete copies
of all Support Obligations have been Made Available to Buyer and such Support Obligations constitute all of the credit support and assurance
that the Company is required by any Applicable Law or Contract to provide as of the Closing Date.
Section
5.17 Indebtedness. Other than pursuant to the Briscoe Financing Documents and Subordinated Notes (which will be terminated, and
all underlying Liens will be released, at the Closing), the Company has no Indebtedness.
Section
5.18 Insurance. Schedule 5.18(a) sets forth all of the Insurance Policies (including policy numbers) maintained by the
Company, Sellers or Affiliates of Sellers with respect to the Company and the Project (excluding, for the avoidance of doubt, any Insurance
Policies maintained by Sellers or their Affiliates that are not primarily intended to provide insurance to the Project or the Company).
All such Insurance Policies are valid and binding and in full force and effect. Except as set forth on Schedule 5.18(b), there
are no material unpaid claims, pending claims, premiums or unrepaired casualties under any such Insurance Policy. None of the Sellers,
their respective Affiliates, nor the Company has received any written notice from the insurers under such Insurance Policies terminating
or not renewing any such policy or disclaiming, or materially altering coverage under such Insurance Policies. The Insurance Policies
set forth on Schedule 5.18(a) satisfy in all material respects the requirements under the applicable Material Contracts and Applicable
Law to maintain insurance in connection with the Project.
Section
5.19 FERC Regulatory Status. The Company is (i) an Exempt Wholesale Generator, (ii) registered as a “Power Generation Company”
with the PUCT, (iii) registered with ERCOT as a “Resource Entity” and shall have designated a “Qualified Scheduling
Entity” in accordance with ERCOT requirements, and (iv) registered with NERC as a “Generator Owner” and “Generator
Operator.”
Section
5.20 Bank Accounts and Officers. Schedule 5.20 contains a true, correct and complete list of (a) each individual who is
a director, manager, or officer of the Company, (b) the names and locations of each bank account and safe deposit box of the Company
and (c) persons authorized to sign checks drawn on such accounts.
30
Section
5.21 Compliance with Anti-Corruption Laws.
(a)
None of the Company, nor any of its members acting in their capacities as such, nor to Sellers’ Knowledge, any of its current or
former officers, directors, representatives, or employees (in each case acting in their capacities as such) have, in the last five (5)
years, (a) whether directly or indirectly, made, offered, promised or authorized any unlawful payment, contribution, entertainment, promise,
gift or other advantage to or for the use or benefit of any representative or agent of any Governmental Entity where that payment, gift,
promise, or other advantage would violate the Anti-Corruption Laws or (b) violated Anti-Corruption Laws or Trade Control Laws. None of
the Company, nor any of its members acting in their capacities as such, nor, to Sellers’ Knowledge, any of its current or former
officers, directors, representatives, or employees (in each case acting in their capacities as such) have, in the last five (5) years,
made or authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds in violation of the Anti-Corruption
Laws. Neither the Company, nor its members acting in their capacities as such, nor, to Sellers’ Knowledge, any of its current or
former officers, directors, employees, or representatives (in each case acting in their capacities as such) are the subject of any written
allegation, investigation, prosecution or other enforcement action related to the Anti-Corruption Laws or any other similar Applicable
Laws.
(b)
None of the Company, nor its members, nor, to Sellers’ Knowledge, its current officers, directors, employees or representatives
(in each case acting in their capacities as such) is a Restricted Party.
(c)
The Company, or its Affiliate on behalf of the Company, maintains (i) policies and procedures reasonably designed to cause the Company
to comply with Anti-Corruption Laws and Trade Control Laws and (ii) internal controls to reasonably ensure that the Company’s transactions
are accurately recorded and reported in their books and records to reflect truly the activities to which they pertain, such as the purpose
of each transaction, with whom it was entered into, for whom it was undertaken, or what was exchanged.
Section
5.22 Exclusivity of Representations. The representations and warranties made by Sellers in Article IV and this Article
V of this Agreement and the other Transaction Documents are the sole and exclusive representations and warranties made by or on behalf
of the Company, Sellers or their respective Affiliates or Representatives in connection with the transactions contemplated by this Agreement
and the other Transaction Documents, and no Person other than any Seller is or was authorized to make any express or implied representation
or warranty in connection with the transactions contemplated by this Agreement and the other Transaction Documents, including with respect
to the accuracy or completeness thereof or any omissions therefrom. Without limiting the generality of the foregoing, except for the
representations and warranties expressly set forth in Article IV and this Article V of this Agreement and the other Transaction
Documents, (a) the Company Interests, the Company, the Project and the Project Assets are being sold by Sellers and acquired by Buyer
on an “as is” and “where is” basis, (b) none of Sellers, their Affiliates (including the Company) or their respective
Representatives makes or has made, directly or indirectly, any representation or warranty, whether express, statutory, implied, written,
oral or otherwise, regarding any Seller, the Company Interests, the Company, the Project, the Project Assets or the transactions contemplated
by this Agreement and the other Transaction Documents, and (c) each Seller, for itself and on behalf of its Affiliates (including the
Company) and its and their respective Representatives, hereby expressly disclaims any and all representations and warranties, whether
express, statutory, implied, written, oral or otherwise, including with respect to the accuracy or completeness thereof or any omissions
therefrom, regarding (i) any Seller, the Company Interests, the Company, the Project, the Project Assets, or the transactions contemplated
by this Agreement and the other Transaction Documents, (ii) the liabilities, operations, title, value, quality, condition, merchantability,
usage, suitability, sufficiency, non-infringement, workmanship, fitness for any particular purpose or conformity to models or samples
of materials of the Project Assets or absence of defects therein or compliance with and liabilities arising under Applicable Law, (iii)
any financial information, models, projections, forecasts or other forward-looking statements, whether provided orally or in writing,
in any information memoranda, overview, summary, management presentation, data room or any other form, or (iv) the suitability of the
Project for operation as a site for the development of any new, additional, or replacement generation or storage capacity. Nothing in
this Section 5.22 shall preclude Buyer from making any claim against any Seller for Fraud, or exculpate any Seller from Fraud,
in each case in the making by such Seller of the representations and warranties set forth in Article IV and V of this Agreement
or the representations and warranties by such Seller in other Transaction Documents.
31
ARTICLE
VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Sellers that the statements contained in this Article VI are true and correct as of the Closing
Date (except where a representation or warranty is made herein as of a specified date, in which case as of such date):
Section
6.01 Organization and Good Standing. Buyer is (i) validly existing and in good standing under the laws of its state of organization
or incorporation and (ii) has all requisite limited liability company or corporate power and authority to own, lease and operate its
properties and assets and to carry on its business as presently conducted. Buyer is duly qualified and in good standing to carry on its
business where required by Applicable Law to be so qualified, except where the failure to be so qualified and in good standing would
not reasonably be expected to have a material adverse effect on Buyer’s ability to consummate the transactions contemplated by
this Agreement and the other Transaction Documents.
Section
6.02 Authority. Buyer has all requisite limited liability company or corporate power and authority and has taken all limited liability
company or corporate action necessary to execute, deliver and perform its obligations under this Agreement and each other Transaction
Document to which it is a party and to consummate the transactions contemplated hereby and thereby. This Agreement and each other Transaction
Document to which Buyer is a party has been duly executed and delivered by Buyer and constitutes (assuming due authorization, execution
and delivery by Sellers and any other Persons a party thereto, as applicable), a valid and legally binding obligation of Buyer, enforceable
against Buyer in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions.
Section
6.03 Non-Contravention. Assuming the accuracy of the representations and warranties made by Seller in Article IV and Article
V, the execution, delivery and performance by Buyer of this Agreement and each other Transaction Document to which Buyer is a party,
and the consummation by Buyer of the transactions contemplated hereby and thereby, will not (i) violate or result in a breach of, or
default under, any provision of Buyer’s Charter Documents, (ii) with or without notice, lapse of time or both, result in a violation
or breach of, or an acceleration or termination of (or give rise to a right of termination, cancellation, acceleration or other change
of any right or obligation) or a default under, any material Contract to which Buyer is a party, (iii) except as set forth on Schedule
6.03, require Buyer to obtain or make any consent, registration, approval, order or authorization of, or filing with or notice, declaration,
registration or designation to, any Governmental Entity or any other Person, or (iv) violate any Applicable Law, except, with respect
to clause (ii), where such violation or breach would not have a material adverse effect on Buyer or Buyer’s ability to consummate
the transactions contemplated by this Agreement and each other Transaction Document to which Buyer is a party.
32
Section
6.04 Proceedings. There are no Proceedings pending or threatened in writing against Buyer at law or in equity, by or before any
Governmental Entity, and Buyer is not bound by any Order, in each case that could prevent, materially delay, or materially adversely
affect Buyer’s ability to perform its obligations under this Agreement or any other Transaction Document to which Buyer is a party
or the consummation of the transactions contemplated hereby and thereby.
Section
6.05 Financing. Buyer has cash on hand or credit available sufficient to (a) pay the Purchase Price, (b) pay any and all fees
and expenses required to be paid by Buyer in connection with the transactions contemplated hereby and by each other Transaction Document
to which Buyer is a party and (c) satisfy all of Buyer’s other payment obligations required to be paid in connection with the Closing.
Buyer acknowledges that receipt or availability of funds, credit, or financing by Buyer or any of its Affiliates shall not be a condition
to Buyer’s obligations hereunder.
Section
6.06 Restricted Securities. Buyer understands that the Company Interests will not have been registered pursuant to the Securities
Act or any applicable state securities laws, that the Company Interests will be characterized as “restricted securities”
under federal securities laws, that under such laws and applicable regulations the Company Interests cannot be sold or otherwise disposed
of without registration under the Securities Act or an exemption therefrom and that no market may exist for the resale of the Company
Interests.
Section
6.07 Accredited Investor; Investment Intent. Buyer is an “accredited investor” as defined in Regulation D promulgated
by the United States Securities and Exchange Commission under the Securities Act. Buyer is acquiring the Company Interests for its own
account, as an investment only, and not with a view to sell, transfer, distribute or otherwise dispose of all or any part thereof to
any other Person, except in compliance with applicable federal and state securities laws.
Section
6.08 Brokers. Neither Buyer nor its Affiliates has entered into any arrangement with any Person that would obligate Sellers or
their Affiliates to pay any commission, brokerage fee, success fee, “finder’s fee” or other similar fees or commissions
in connection with the transactions contemplated by this Agreement or the other Transaction Documents to which Buyer is a party.
Section
6.09 Solvency. Assuming the accuracy of the representations and warranties set forth in Article IV and Article V,
upon giving effect to the transactions contemplated by this Agreement and the Transaction Documents, each of Buyer and its subsidiaries
(including the Company) will be able to pay their respective debts as such debts become due, will have capital sufficient to carry out
their respective businesses as now contemplated and will own property having a value both at fair market valuation and at fair saleable
value in the ordinary course of business greater than the amount required to pay their respective debts and other obligations as the
same mature and become due.
33
Section
6.10 Tax Matters.
(a)
Buyer (or if Buyer is disregarded as separate from its owner for U.S. federal income tax purposes, the Person that is treated as the
owner of Buyer’s assets for U.S. federal income tax purposes) is a “United States person” within the meaning of Section
7701(a)(30) of the Code.
(b)
Buyer (or if Buyer is disregarded as separate from its owner for U.S. federal income tax purposes, the Person that is treated as the
owner of Buyer’s assets for U.S. federal income tax purposes) is not a “tax-exempt entity” or a “tax-exempt controlled
entity” within the meaning of Section 168(h) of the Code and will not otherwise cause any of the property of the Company to be
treated as “tax-exempt use property” within the meaning of Section 168(h) of the Code.
Section
6.11 Qualifications. Buyer is not a “public utility” under the FPA. Buyer is not a “holding company” under
the PUHCA or FPA.
Section
6.12 No Foreign Control. No foreign Person directly or indirectly “controls” Buyer within the meaning of 31 C.F.R.
Part 800.204.
Section
6.13 No PUCT Filing. No filing with or approval from the PUCT is required in order for Buyer to acquire the Company Interests
in accordance with this Agreement.
Section
6.14 Lone Star Infrastructure Protection Act. Buyer is not owned by, and the majority of the stock or other ownership interest
of Buyer is not held or controlled by (a) individuals who are citizens of China, Iran, North Korea, Russia, or a designated country under
and as defined in the Lone Star Infrastructure Protection Act, TEX. BUS. & COM. CODE § 113.003 or (b) a company or other entity,
including a Governmental Entity, that is owned or controlled by citizens of, or is directly controlled by the government of, China, Iran,
North Korea, Russia, or a designated country under and as defined in the Lone Star Infrastructure Protection Act, TEX. BUS. & COM.
CODE § 113.003. Buyer is not headquartered in China, Iran, North Korea, Russia, or a designated country under and as defined in
the Lone Star Infrastructure Protection Act, TEX. BUS. & COM. CODE § 113.003.
Section
6.15 Buyer’s Reliance.
(a)
Buyer (i) is a sophisticated investor and, with the assistance of Buyer’s Representatives, has made its own inquiry and investigation
into, and based thereon has formed an independent judgment concerning, the Company, the Project, the Project Assets and the transactions
contemplated by this Agreement and the other Transaction Documents, (ii) has been furnished with or given adequate access to such information
about the Company, the Project, the Assets and the transactions contemplated by this Agreement and the other Transaction Documents as
it has requested, (iii) to the extent it has deemed appropriate, has addressed in this Agreement any and all matters arising out of its
inquiry and investigation into, and the information provided to it concerning, the Company, the Project, the Project Assets and the transactions
contemplated by this Agreement and the other Transaction Documents, and (iv) in determining to proceed with the transactions contemplated
by this Agreement and the other Transaction Documents, has not relied on any statements or information other than the representations
and warranties expressly set forth in Article IV and Article V of this Agreement and in the other Transaction Documents.
34
(b)
Buyer acknowledges and agrees that none of Sellers, their Affiliates (including the Company) or their respective Representatives has
made, nor will any of them be deemed to have made (and Buyer, its Affiliates and its and their Representatives have not relied upon),
any representation, warranty, covenant or agreement, whether express or implied, including with respect to the accuracy or completeness
thereof, with respect to Sellers, the Company, the Project, the Project Assets or the transactions contemplated by this Agreement and
the other Transaction Documents, other than those expressly set forth in Article IV and Article V of this Agreement and
in the other Transaction Documents. Buyer further acknowledges and agrees that none of Sellers, their Affiliates (including the Company)
or any other Person (including any Representative of Sellers or their respective Affiliates (including the Company)) shall have or be
subject to any liability to Buyer or any other Person resulting from Buyer’s use of any information, documents or materials, including
any financial information, models, projections, forecasts or forward-looking statements Made Available to Buyer in any “data rooms,”
management presentations, due diligence or in any other form in connection with the transactions contemplated hereby and the other Transaction
Documents.
(c)
Buyer understands the speculative nature of an investment in the Company. Buyer acknowledges and agrees that it can bear the economic
risk of its investment in the Company, could afford a complete loss of such investment and has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of an investment in the Company.
Section
6.16 Compliance with Anti-Corruption Laws.
(a)
None of Buyer, nor any of its members acting in their capacities as such, nor to Buyer’s knowledge, any of its current or former
officers, directors, representatives, or employees (in each case acting in their capacities as such) have, in connection with the transactions
contemplated by this Agreement, (a) whether directly or indirectly, made, offered, promised or authorized any unlawful payment, contribution,
entertainment, promise, gift or other advantage to or for the use or benefit of any representative or agent of any Governmental Entity
where that payment, gift, promise, or other advantage would violate the Anti-Corruption Laws or (b) violated Anti-Corruption Laws or
Trade Control Laws. None of Buyer, nor any of its members acting in their capacities as such, nor, to Buyer’s knowledge, any of
its officers, directors, representatives, or employees (in each case acting in their capacities as such) have, in connection with the
transactions contemplated by this Agreement, made or authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment of funds in violation of the Anti-Corruption Laws. Neither Buyer, nor its members acting in their capacities as such, nor, to
Buyer’s knowledge, any of its current or former officers, directors, employees, or representatives (in each case acting in their
capacities as such) are the subject of any written allegation, investigation, prosecution or other enforcement action related to the
Anti-Corruption Laws or any other similar Applicable Laws.
35
(b)
None of Buyer, nor its members, nor, to Sellers’ Knowledge, its current officers, directors, employees, or representatives (in
each case acting in their capacities as such) is a Restricted Party.
(c)
Buyer or its Affiliate on behalf of Buyer maintains (i) policies and procedures reasonably designed to cause Buyer to comply with Anti-Corruption
Laws and Trade Control Laws and (ii) internal controls to reasonably ensure that Buyer’s transactions are accurately recorded and
reported in their books and records to reflect truly the activities to which they pertain, such as the purpose of each transaction, with
whom it was entered into, for whom it was undertaken, or what was exchanged.
ARTICLE
VII
COVENANTS OF THE PARTIES
Section
7.01 Tax Matters.
(a)
If each Seller has delivered to Buyer a properly completed and duly executed Internal Revenue Service Form W-9, Buyer shall not deduct
or withhold any amounts otherwise payable to Sellers pursuant to this Agreement for backup withholding or any similar withholding Taxes.
(b)
(i) Sellers, at their sole cost and expense, shall prepare and timely file, or cause to be prepared and timely filed, all Tax Returns
for the Company for any Pre-Closing Date Tax Period required to be filed after the Closing Date (each such return, a “Pre-Closing
Date Tax Return”) and (ii) Buyer, at its sole cost and expense, shall prepare and timely file, or cause to be prepared and
timely filed, all Tax Returns for the Company for any Straddle Period (each such return, a “Straddle Period Return”),
in each case in accordance with the Charter Documents of the Company and consistent with the past practices of the Company unless otherwise
agreed by Buyer and Seller. Sellers shall be responsible for all Taxes in respect of any Pre-Closing Date Tax Period and the Taxes for
the pre-Closing portion of the Straddle Period, in each case.
(c)
For purposes of any other relevant provisions of this Agreement, the amount of Taxes of the Company attributable to the portion of the
Straddle Period ending on the Closing Date shall be (i) in the case of real, personal and intangible property Taxes and any other Taxes
levied on a similar basis, equal to the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of
which is the number of days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the total
number of days in the Straddle Period, and (ii) in the case of all other Taxes, computed based on an interim closing of the books as
of the close of business on the Closing Date; provided, that any exemptions, deductions or credits relating to a Straddle Period
that are calculated on an annual or other periodic basis shall be apportioned on a pro rata, per diem basis.
(d)
Sellers shall be entitled to all Tax refunds (including interest thereon) and credits (including PTCs) with respect to the Company attributable
to any Pre-Closing Date Tax Period or to that portion of the Straddle Period that ends on the Closing Date. Buyer shall pay to Sellers
any such refund or credit within fifteen (15) days after receipt or entitlement thereto by Buyer. Buyer shall, and shall cause the Company
to, use commercially reasonable efforts to obtain a refund or credit of any Tax of the Company attributable to a period ending prior
to the Closing Date or that portion of the Straddle Period ending on the Closing Date or to mitigate, reduce, or eliminate any such Tax
that could be imposed for a period ending prior to the Closing Date or that portion of the Straddle Period ending on the Closing Date.
36
(e)
Each Party shall, and shall cause its Affiliates (in the case of Buyer) or its controlled Affiliates (in the case of Sellers) to, provide
to the other Parties such cooperation, documentation and information as any of them reasonably may request in (i) preparing and filing
any Tax Return, amended Tax Return or claim for credit or refund, (ii) determining a liability for Taxes or a right to a Tax credit or
refund, or (iii) conducting any Tax Proceeding. Such cooperation, documentation and information shall include providing necessary powers
of attorney, copies of all relevant portions of relevant Tax Returns, together with all relevant portions of relevant accompanying schedules
and relevant work papers, relevant documents relating to rulings or other determinations by Taxing Authorities and relevant records concerning
the ownership and Tax basis of property and other relevant information that any such Party may possess. Each Party shall make its employees
reasonably available on a mutually convenient basis at its own cost and expense to provide an explanation of any documents or information
so provided.
(f)
None of Buyer or any of its Affiliates (including the Company) shall take any of the following actions, without the prior written consent
of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed): (i) make any Tax election, or change in Tax accounting
period or method, that would have an effective date on or prior to the Closing Date or affect Taxes for any Seller, (ii) amend any Tax
Return for a Pre-Closing Date Tax Period, (iii) initiate or execute any voluntary disclosure agreement or similar agreement with any
Taxing Authority with respect to a Pre-Closing Date Tax Period, or (iv) extend the statute of limitations with respect to any Tax Return
filed with respect to the Company for any Pre-Closing Date Tax Period.
(g)
Notwithstanding anything to the contrary in this Agreement, for any Tax Proceeding with respect to Taxes or Tax Returns of the Company
for Pre-Closing Date Tax Periods for which the Partnership Tax Audit Rules apply, Sellers, and any “partnership representative”
and/or “designated individual” of the Company shall take any actions necessary to make a timely and proper election under
Section 6226(a) of the Code (and any corresponding elections under state and local law) to treat a “partnership adjustment”
as an adjustment to be taken into account by each partner/member of the Company (including former partners/members) in accordance with
Section 6226(b) of the Code (and any corresponding rules under applicable state and local law).
37
Section
7.02 Transfer Taxes. Notwithstanding anything to the contrary in this Agreement, Buyer shall be solely responsible for any Transfer
Taxes imposed on or payable in connection with the transactions contemplated by this Agreement and the other Transaction Documents. Buyer
shall, at its own expense, file all required Tax Returns and other documentation required to be filed under Applicable Law with respect
to such Transfer Taxes and pay such Transfer Taxes, in each case within the time and manner required by Applicable Law. If required by
Applicable Law, Sellers shall, and shall cause their respective controlled Affiliates to, join in the execution of any such Tax Returns
and other such documentation.
Section
7.03 Insurance Matters. From and after the Closing Date (a) the Company shall cease to be insured by, have access or availability
to, be entitled to make claims on, or be entitled to claim benefits or seek coverage under, any Insurance Policies held by Sellers or
their respective Affiliates or any of their self-insured programs including in respect of events occurring prior to the Closing Date;
provided, that, the foregoing shall not apply to the Title Policies nor limit the Company’s rights under those Insurance Policies
described on Schedule 5.18(b) in respect of the outstanding claims made under such Insurance Policies as set forth on Schedule
5.18(b) and if requested by Buyer in writing following the Closing Date, Sellers shall reasonably cooperate with Buyer, at Buyer’s
sole cost and expense, in connection with Buyer’s and the Company’s pursuit of such claims under such Insurance Policies
and (b) Buyer shall be solely responsible for obtaining or providing insurance coverage for the Company after the Closing sufficient
to comply with all contractual and statutory obligations of the Company. Buyer hereby irrevocably and unconditionally waives, including
on behalf of its insurers and its Affiliates (which, following the Closing, shall include the Company), any claims and rights it or they
may have against or under any Insurance Policies retained by any Seller or its Affiliates solely to the extent such claims or rights
arise after the Closing Date.
Section
7.04 Public Announcements. The Parties agree that the initial press release or public announcement to be issued with respect to
the execution of this Agreement and the transactions contemplated hereby shall be in the form heretofore agreed by Sellers and Buyer.
Except as may be required by Applicable Law (including the rules and regulations of any applicable stock exchange), neither Buyer nor
Sellers shall make or issue, or cause or permit any of their respective Representatives or Affiliates (in the case of Buyer) or their
respective controlled Representatives or controlled Affiliates (in the case of Sellers) to make or issue, any other press release, media
statement or other public communication with respect to this Agreement or the transactions contemplated hereby without the prior written
consent of Sellers (in the case of Buyer) or Buyer (in the case of Sellers) (in each case, which consent shall not be unreasonably withheld,
conditioned or delayed). Any such press release, statement or communication required by Applicable Law shall only be made after reasonable
prior notice to, and consultation with, Sellers (in the case of Buyer) or Buyer (in the case of Sellers).
38
Section
7.05 Confidentiality.
(a)
From and after the Closing, each Seller shall, and shall cause its controlled Affiliates and its and their controlled Representatives
to, treat as confidential and not disclose (1) any and all confidential information, trade secrets, knowledge or data of the Company
or (2) the terms and existence of this Agreement and the Transaction Documents and the negotiations related hereto (collectively, the
“Company Confidential Information”), except to the extent that such information (i) is or becomes generally available
to the public other than as a result of disclosure thereof by such Seller, its Affiliates, or its or their Representatives or (ii) is
or becomes available to such Seller, its Affiliates, or its or their Representatives from a source which, to the actual knowledge of
such Seller, its Affiliates, or its or their Representatives, is not prohibited from disclosing such information by a legal, contractual
or fiduciary obligation; provided, however, that each Seller may disclose the Company Confidential Information in connection
with (1) any claim, demand or action brought against or in good faith by such Seller or its Affiliates in connection with or related
to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby, (2) preparing tax reports and filings
of such Seller or any of its Affiliates, (3) performing its obligations under this Agreement or as permitted under Section 7.04,
or (4) such Seller’s or its Affiliates’ compliance with Applicable Law (including the rules and regulations of any applicable
stock exchange) or as requested by any Governmental Entity (including in connection with such Seller or its Affiliates obtaining or maintaining
regulatory or governmental approvals, applications or exemptions). If, after the Closing, a Seller or its Affiliate is legally required
by Applicable Law to disclose any Company Confidential Information, such Seller shall (I) notify Buyer as soon as reasonably practicable
to permit Buyer to seek a protective order or take other appropriate action and (II) cooperate as reasonably requested by Buyer, at Buyer’s
sole cost and expense, in Buyer’s efforts to obtain a protective order or other reasonable assurance that confidential treatment
will be accorded such Company Confidential Information. If, in the absence of a protective order, a Seller or its Affiliate is compelled
as a matter of Applicable Law to disclose Company Confidential Information to a Third Party, such Seller may disclose to the Third Party
compelling disclosure only the part of such Company Confidential Information as is required by Applicable Law to be disclosed.
(b)
From and after the Closing, Buyer shall, and shall cause its Affiliates (including the Company) and its and their respective Representatives
to, treat as confidential and not disclose (1) any and all confidential information of each Seller and its Affiliates (not including
the Company) and (2) the terms and existence of this Agreement and the Transaction Documents and the negotiations related hereto (collectively,
the “Seller Confidential Information”), except to the extent that such information (i) is or becomes generally available
to the public other than as a result of disclosure thereof by Buyer, its Affiliates, or its or their Representatives or (ii) is or becomes
available to Buyer, its Affiliates or its or their Representatives from a source which, to the actual knowledge of Buyer, its Affiliates,
or its or their Representatives, is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation;
provided, however, that Buyer may disclose the Seller Confidential Information in connection with (1) any claim, demand
or action brought against or in good faith by Buyer or its Affiliates in connection with or related to this Agreement, the Transaction
Documents or the transactions contemplated hereby or thereby, (2) preparing tax reports and filings of the Company, (3) performing its
obligations under this Agreement or as permitted under Section 7.04, (4) Buyer’s financing and financing sources or (5)
Buyers’ or its Affiliates’ compliance with Applicable Law (including the rules and regulations of any applicable stock exchange)
or as requested by any Governmental Entity (including in connection with Buyer or its Affiliates obtaining or maintaining regulatory
or governmental approvals, applications or exemptions). If, after the Closing, Buyer or its Affiliate is legally required by Applicable
Law to disclose any Seller Confidential Information, Buyer shall (I) notify Sellers as soon as reasonably practicable to permit Sellers
to seek a protective order or take other appropriate action and (II) cooperate as reasonably requested by Sellers, at Sellers’
sole cost and expense, in Sellers’ efforts to obtain a protective order or other reasonable assurance that confidential treatment
will be accorded such Seller Confidential Information. If, in the absence of a protective order, Buyer or its Affiliate is compelled
as a matter of Applicable Law to disclose Seller Confidential Information to a Third Party, Buyer may disclose to the Third Party compelling
disclosure only the part of such Seller Confidential Information as is required by Applicable Law to be disclosed.
39
(c)
The obligations set forth in this Section 7.05 shall not apply to the Tax treatment, reporting or structure of the transactions
contemplated by this Agreement and each Party (and any Representative of each Party) may disclose to any and all Persons, without limitation
of any kind, the Tax treatment and Tax structure of the transactions contemplated by this Agreement and all other materials of any kind
(including opinions or other Tax analysis) that are provided to any Party relating to such Tax treatment and Tax structure (all such
information that may be so disclosed hereunder is hereinafter referred to as “Tax Information”). However, any Tax
Information is required to be kept confidential to the extent necessary to comply with any securities laws applicable to any Party or
its Affiliates. This Section 7.05(c) is intended to prevent the transactions contemplated by this Agreement from being treated
as a “reportable transaction” as a result of being transactions offered to a taxpayer under conditions of confidentiality
within the meaning of Sections 6011, 6111 and 6112 of the Code and the Treasury Regulations thereunder (as clarified by Notice 2004-80
and Notice 2005-22).
Section
7.06 Books and Records At and After Closing.
(a)
From and after the Closing, Buyer will provide, and will cause its Affiliates (including the Company) to provide, each Seller, its Affiliates,
and its and their Representatives with reasonable access to all of the books and records and other documents of the Company (and the
assistance of employees responsible for such books and record) to the extent that such access may reasonably be required by such parties
in connection with matters relating to or affected by the operations of the Company prior to the Closing. Such access will be afforded
by the Company upon receipt of reasonable advance notice and during normal business hours. Buyer shall, and shall cause its Affiliates
(including the Company), to maintain and preserve all such books and records and documents (including Pre-Closing Date Tax Returns) for
a period of seven (7) years after the Closing Date.
(b)
From and after the Closing, upon Buyer’s or its Affiliate’s reasonable request, Sellers will provide or cause to be provided
to Buyer or its Affiliate any book, record or similar document in Sellers’ possession that is reasonably necessary for Buyer’s
ownership or operation of the Company.
40
Section
7.07 R&W Insurance Policy.
(a)
On the Closing Date, Buyer has entered into the Binder Agreement, and Buyer shall use commercially reasonable efforts to cause the R&W
Insurance Policy to be issued and to maintain the effectiveness of the R&W Insurance Policy from and after the Closing Date in accordance
with the terms and conditions of the Binder Agreement. Buyer agrees that the R&W Insurance Policy includes terms to the following
effect: (i) provides that the R&W Insurance Policy insurer shall have no right of subrogation, contribution or indemnification against
any Seller or its Affiliates or any of their respective officers, directors, employees, direct or indirect equity holders, Affiliates,
controlling Persons, Representatives, successors or assigns (the “Seller Protected Parties”), except in the case of
Fraud by any Seller, (ii) includes a waiver of any such right of subrogation, contribution, indemnification or similar rights against
the Seller Protected Parties, except in the case of Fraud by any Seller, (iii) provides that each of the Seller Protected Parties is
an express third-party beneficiary of such waiver and (iv) provides that such waiver may not be amended without the written consent of
the Seller Protected Parties (not to be unreasonably withheld, conditioned or delayed). Once bound, the protections from subrogation
for the Seller Protected Parties (including the definition of “fraud”) in the R&W Insurance Policy shall not be terminated
by Buyer or its Affiliates or amended in a manner that is materially adverse, or that is reasonably expected to be materially adverse,
to any of the Seller Protected Parties other than with the prior written consent of the members of the Seller Protected Parties. Buyer
or its Affiliates will pay one hundred percent (100%) of the costs and expenses of obtaining and exercising any rights under the R&W
Insurance Policy, including any premium payments, brokerage commissions (to the extent not included in premium), legal fees for counsel
engaged by the underwriter, surplus lines, premium tax and other applicable taxes, fees or surcharges. Once issued by the R&W Insurance
Policy insurer to Buyer or its Affiliates following the Closing, Buyer shall deliver to Sellers an electronic copy of the final version
of the R&W Insurance Policy.
(b)
Sellers shall, and shall cause their controlled Representatives to, use good faith efforts to reasonably cooperate with Buyer in connection
with any claim made or contemplated by Buyer under the R&W Insurance Policy; provided, that, Buyer shall pay or reimburse Sellers
for any out of pocket expenses which are incurred by Sellers in connection with their cooperation for such Buyer claim.
(c)
No later than ten (10) Business Days after the Closing Date, Sellers shall deliver or cause to be delivered to Buyer a USB or flash drive
with the contents of the Data Room.
Section
7.08 Settlement of Affiliate Accounts. Except as set forth on Schedule 5.15, prior to the Closing, Sellers and their Affiliates
(other than the Company), on the one hand, and the Company, on the other hand, shall pay, settle, net, cancel, forgive or release any
liabilities under the Intercompany Accounts between such parties or Sellers shall have caused such Intercompany Accounts to be transferred
to or from the Company, such that the Company, on the one hand, and Sellers and their Affiliates (other than the Company), on the other
hand, do not have any further liability to one another in respect of such Intercompany Accounts following the Closing.
41
ARTICLE
VIII
SURVIVAL
Section
8.01 Survival; Recourse.
(a)
Except for claims of Fraud, the Parties, intending to modify any applicable statute of limitations, agree that none of the representations,
warranties, covenants and agreements of Buyer, any Sellers or the Company contained in this Agreement or any certificate delivered pursuant
hereto shall survive beyond the Closing, such that no claim for breach of any such representation, warranty, covenant or agreement, detrimental
reliance or other right or remedy (whether in contract, in tort or at law or in equity) may be brought after the Closing with respect
thereto against any of Buyer, Sellers, the Company, any Affiliate thereof, or any other Seller Protected Party and there shall be no
liability in respect thereof, whether such liability has accrued prior to or after the Closing, on the part of any of Buyer, Sellers,
the Company, or the Seller Protected Parties, except for those covenants, agreements, other provisions and acknowledgements contained
herein that by their terms expressly apply or are to be performed in whole or in part after the Closing (which such covenants, agreements,
other provisions and acknowledgements shall survive the Closing in accordance with their respective terms only to the extent and for
such period as shall be required for the party required to perform under such covenant and agreement to complete the performance required
thereby). For the avoidance of doubt, this Section 8.01(a) is not intended to, and shall in no way, limit, impede, nullify or
otherwise modify any of the survival periods contained in the R&W Insurance Policy.
(b)
Notwithstanding anything to the contrary in this Agreement, from and after the Closing, except for claims of Fraud by any Seller, recovery
by Buyer and its Affiliates in respect of any and all Losses, claims (whether in contract, in tort or at law or in equity), damages,
costs, expenses, liabilities or judgments, in each case, arising or resulting from or relating to a breach of any representation or warranty
in this Agreement or in any certificate delivered pursuant to this Agreement shall be limited solely and exclusively to the R&W Insurance
Policy. Buyer hereby acknowledges and agrees that any risk that coverage is or may not be available to it under the R&W Insurance
Policy, including because such R&W Insurance Policy does not become effective or fails to remain in full force in effect, coverage
thereunder is or becomes limited by the insurer thereunder or otherwise, or Buyer is otherwise unable to collect any amount in respect
of any claim made thereunder, shall be borne solely by Buyer. Notwithstanding anything to the contrary in this Agreement, Sellers’
liability to Buyer hereunder or in respect of the transactions contemplated by this Agreement shall not be altered or otherwise affected
in any manner as a result of the failure of any claim made by Buyer under the R&W Insurance Policy to be covered thereby (or whether
Buyer actually receives any payment from the insurer thereunder in respect of any such claim), whether due to policy exceptions, qualifications
or exclusions, validity, creditworthiness or otherwise.
(c)
Notwithstanding any provision of this Agreement to the contrary (including this Article VIII), nothing in this Agreement or any
other Transaction Document shall, nor is it the Parties’ intention to, (i) limit, restrict, frustrate, undermine or impede the
rights of the Buyer or any Buyer Related Party under the R&W Insurance Policy nor (ii) affect the rights and remedies of any Person
with respect to claims for Fraud.
42
(d)
No Person who is not a party to this Agreement, including any past, present or future director, officer, employee, incorporator, member,
partner, manager, direct or indirect equity holder, Affiliate, agent, attorney or representative of, and any financial advisor or lender
to, any party to this Agreement, or any director, officer, employee, incorporator, member, partner, manager, direct or indirect equity
holder, Affiliate, agent, attorney or representative of, and any financial advisor or lender to, any of the foregoing (“Nonparty
Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity or granted by statute or based
upon any theory that seeks to impose liability of a party against its owners or Affiliates, including through attempted piercing of the
corporate veil) for any claims, causes of action, obligations or liabilities arising under, arising out of, based on, in respect of or
by reason of this Agreement or its negotiation, execution, performance or breach; and, to the maximum extent permitted by Applicable
Law, each Party to this Agreement hereby waives and releases all such liabilities, claims, causes of action and obligations against any
such Nonparty Affiliates. Each Nonparty Affiliate is an express third-party beneficiary of this Section 8.01(d).
ARTICLE
IX
MISCELLANEOUS
Section
9.01 Notices. All notices, requests, demands and other communications required or permitted to be given or made hereunder by either
Party shall be in writing and shall be deemed to have been duly given or made if (a) delivered by hand (with written confirmation of
receipt), (b) sent by e-mail (without failed delivery or out of office notification) or (c) sent by registered or certified mail, postage
prepaid or by a recognized prepaid overnight courier service (which provides a receipt) to such Party at the following addresses (or
at such other addresses as shall be specified by a Party by like notice):
If
to Briscoe Holdings:
Briscoe
Project Wind Holdings I, LLC
c/o
Capital Dynamics, Inc.
444
Madison Avenue
21st
Floor
New
York, New York 10022
Attention:
Email:
If
to JPMCC:
JPM
Capital Contribution
10
South Dearborn
CIB-Tax
Oriented Investments
Chicago,
Illinois 60603
Attention:
Email:
43
With
a copy to (which shall not constitute notice):
JPMorgan
Chase Bank, N.A.
277
Park Avenue, 10th Floor
New
York, NY 10172
Attention:
Email:
With
a copy to (which shall not constitute notice):
Hunton
Andrews Kurth LLP
Riverfront
Plaza, East Tower
951
East Byrd Street
Richmond,
Virginia 23219
Attention:
Email:
If
to MSW:
Morgan
Stanley Wind LLC
1585
Broadway, 6th Floor
New
York, NY 10036
Attn:
Email:
With
a copy to (which shall not constitute notice):
Hunton
Andrews Kurth LLP
Riverfront
Plaza, East Tower
951
East Byrd Street
Richmond,
Virginia 23219
Attention:
Email:
If
to Buyer:
Soluna
DV Wind SponsorCo, LLC
c/o
Soluna Holdings, Inc.
325
Washington Ave. Extension
Albany,
NY 12205
Attention:
Email:
With
a copy to:
Soluna
DV Wind SponsorCo, LLC
c/o
Soluna Holdings, Inc.
325
Washington Ave. Extension
Albany,
NY 12205
Attention:
Email:
With
a copy to (which shall not constitute notice):
Norton
Rose Fulbright US LLP
1301
Avenue of the Americas
New
York, NY 10019
Attention:
Email:
44
Such
notices, requests, demands and other communications shall be effective (i) if given by personal delivery, mail or courier pursuant to
this Section 9.01, upon physical receipt, or (ii) if given by email pursuant to this Section 9.01, upon confirmation of
successful transmission without failed delivery or out of office notification.
Section
9.02 Entire Agreement. This Agreement, together with the Schedules, Exhibits and other Transaction Documents, constitutes the
entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the Parties with respect to the subject matter hereof.
Section
9.03 Waiver; Amendment. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each
Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by
the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not
expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that
waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate
or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section
9.04 Binding Effect; Assignment; No Third Party Benefit. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective heirs, legal representatives, successors, and permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by any Party without the prior written consent of the other Parties, which consent
shall not be unreasonably withheld, conditioned, or delayed; provided, that no consent of Sellers shall be required for any such
assignment by Buyer to (a) an Affiliate of Buyer; provided, that, if such assignment occurs prior to payment of any amounts which may
be required to be made by Buyer pursuant to Section 2.03, such Affiliate shall own directly or indirectly the Project or (b) any
debt financing source (or any agent or collateral trustee for such Person) as collateral in connection with any debt financing so long
as Buyer remains obligated under this Agreement. Except as expressly provided in this Agreement, nothing in this Agreement is intended
to or shall confer upon any Person other than the Parties, and their respective heirs, successors and permitted assigns, any rights,
benefits, or remedies of any nature whatsoever under or by reason of this Agreement.
45
Section
9.05 Severability. If any provision of this Agreement shall be judicially declared to be invalid, illegal, unenforceable or void,
such decision shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision
in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest
extent possible.
Section
9.06 Expenses. Except as otherwise provided in this Agreement, all fees, costs and expenses, including any fees and disbursements
of counsel, financial advisors, accountants and brokers, incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by or on behalf of the Party incurring such fees, costs and expenses.
Section
9.07 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
(a)
This Agreement, and all Proceedings (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement,
or the negotiation, execution or performance of this Agreement or the transactions contemplated hereby (including any Proceeding based
upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to
enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of New York, including
its statutes of limitations, without reference to conflicts of law principles.
(b)
Each of the Parties (i) irrevocably submits itself to the personal jurisdiction of each state or federal court sitting in the State of
New York, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any Proceeding arising out
of or relating to this Agreement, or the negotiation, execution or performance of this Agreement or the transactions contemplated hereby,
(ii) agrees that every such Proceeding shall be brought, heard and determined exclusively in the United States District Court of the
Southern District of New York (provided that, in the event subject matter jurisdiction is unavailable in or declined by such court, then
all such Proceedings shall be brought, heard and determined exclusively in any other state or federal court sitting in the State of New
York), (iii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from
such court, (iv) agrees not to bring any Proceeding arising out of or relating to this Agreement, or the negotiation, execution or performance
of this Agreement or the transactions contemplated hereby in any other court, and (v) waives any defense of inconvenient forum to the
maintenance of any Proceeding so brought.
(c)
Each of the Parties agrees that service of any process, summons, notice or document by U.S. registered mail to its address set forth
in Section 9.01 shall be effective service of process for any Proceeding brought against such Party arising out of or relating
to this Agreement, or the negotiation, execution or performance of this Agreement or the transactions contemplated hereby; provided,
however, that the foregoing clause shall not limit the right of any Party to serve legal process in any other manner permitted
by Applicable Law.
46
(d)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF SUCH WAIVER, (iii) SUCH PARTY MAKES SUCH WAIVER KNOWINGLY AND VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.07(d).
Section
9.08 Further Assurances. From time to time following the Closing, at the request of any Party and without further consideration,
the other Parties shall execute and deliver to such requesting Party such instruments and documents and take such other action (but without
incurring any material financial obligation) as such requesting Party may reasonably request in order to consummate more fully and effectively
the transactions contemplated hereby.
Section
9.09 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which
together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic
transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Section
9.10 Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, except
as expressly provided in this Agreement, each of the Parties shall be entitled to seek an injunction or injunctions to prevent breaches
of this Agreement and to seek to enforce specifically the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section
9.11 Disclosures. Nothing in the Schedules is intended to broaden the scope of any representation or warranty contained in this
Agreement or to create any covenant by any Party or among the Parties unless clearly specified to the contrary herein or therein. For
completeness of disclosure and convenience of reference, the Schedules may include information or items which are not necessarily material,
and any such inclusion, or any references to dollar amounts, shall not be deemed to expand the representations and warranties in this
Agreement, modify the levels of materiality contained in this Agreement, constitute an admission that such information or items are material
or arose outside the ordinary course of business or define further the meaning of any terms defined in this Agreement. Each numbered
Schedule qualifies the correspondingly numbered representation, warranty or covenant; provided, however, any information
or items set forth in one section of the Schedules shall be deemed to also apply to any other section of this Agreement or the Schedules
for which the applicability of such information or items is reasonably apparent on the face of such disclosure. No disclosure in the
Schedules shall constitute, or be deemed to be, an admission to any Third Party concerning such item, including with respect to any actual
or possible breach or violation of any Contract or Applicable Law, or a waiver of any attorney-client privilege associated with such
information or items or any protection afforded by the work-product doctrine with respect to any of the information or items disclosed
or discussed therein.
47
Section
9.12 Releases.
(a)
Except for the express obligations of Sellers under this Agreement and the other Transaction Documents, for and in consideration of the
Company Interests, effective as of the Closing, Buyer, on behalf of itself and its direct and indirect equity holders, subsidiaries,
Affiliates, and the Representatives and direct and indirect equity holders of any of the foregoing and each of their respective successors
and assigns in each case excluding any shareholders of a public company (each, a “Buyer Releasor”), hereby absolutely
and unconditionally releases, acquits and forever discharges, to the fullest extent permitted by Applicable Law, each Seller and their
respective former and present direct or indirect equity holders, subsidiaries, Affiliates, and Representatives and control Persons of
any of the foregoing, and each of the respective heirs, executors, administrators, successors and assigns of any of the foregoing (each,
a “Seller Releasee”) of, from and against any and all Proceedings, causes of action, claims, demands, Losses, judgments,
liabilities, debts, dues and suits of every kind, nature and description whatsoever, whether known or unknown, both in law and in equity,
in each case to the extent arising out of or resulting from such Seller’s or such Seller Releasee’s ownership or operation
of the Company or the Project Assets, business, operations, conduct, services, products or employees (including former employees) of
the Company (or its predecessors), related to any period of time on or before the Closing, including any liabilities under Environmental
Laws. Buyer acknowledges on its own behalf and on behalf of each other Buyer Releasor, that the Applicable Laws of many states provide
substantially the following: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR.” Buyer acknowledges on its own behalf and on behalf of each other Buyer Releasor that such provisions are designed
to protect a party from waiving claims which it does not know exist or may exist. Nonetheless, Buyer agrees on its own behalf and on
behalf of each other Buyer Releasor that effective as of the Closing, each Buyer Releasor shall be deemed to waive any such provision.
Each Buyer Releasor agrees not to, and agrees to to cause its respective equity holders, subsidiaries, Affiliates, Representatives, direct
and indirect parent companies and each of their respective successors and assigns, not to, assert any claim against the Seller Releasees;
provided, however, that notwithstanding anything in this Section 9.12(a), (i) no Buyer Releasor releases its rights
and interests under this Agreement or the other Transaction Documents and (ii) nothing in this Section 9.12(a) shall relieve,
limit, or restrict the rights and remedies of any party with respect to claims on the basis of Fraud.
(b)
Except for the express obligations of Buyer under this Agreement, and the other Transaction Documents, for and in consideration of the
Closing Payment, effective as of the Closing, each Seller, on behalf of itself and its controlled Affiliates, solely to the extent such
Seller has authority to bind such controlled Affiliates (each, a “Seller Releasor”), hereby absolutely and unconditionally
releases, acquits and forever discharges, to the fullest extent permitted by Applicable Law, Buyer and its former and present direct
or indirect equity holders, subsidiaries, Affiliates (including the Company), and Representatives, and each of the respective heirs,
executors, administrators, successors and assigns of any of the foregoing (each, a “Buyer Releasee”) of, from and
against any and all Proceedings, causes of action, claims, demands, Losses, judgments, liabilities, debts, dues and suits of every kind,
nature and description whatsoever, whether known or unknown, both in law and in equity, in each case which any Seller Releasor has or
may have had at any time in the past until and including the Closing, against any of the Buyer Releasee for or by reason of any matter,
cause or thing whatsoever occurring at any time at or prior to the Closing to the extent arising out of or relating to such Seller’s
ownership of the Company Interests or the negotiation, execution and consummation of the transactions contemplated by this Agreement
and the other Transaction Documents. Each Seller acknowledges on its own behalf and on behalf of each other applicable Seller Releasor,
that the Applicable Laws of many states provide substantially the following: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Each Seller acknowledges on its own behalf and on behalf
of each other applicable Seller Releasor that such provisions are designed to protect a party from waiving claims which it does not know
exist or may exist. Nonetheless, each Seller agrees on its own behalf and on behalf of each other applicable Seller Releasor that effective
as of the Closing, each Seller Releasor shall be deemed to waive any such provision. Each Seller Releasor agrees not to, and agrees to
use commercially reasonable efforts to cause only its controlled Affiliates not to, assert any claim against the Buyer Releasees; provided,
however, that notwithstanding anything in this Section 9.12(b), (i) no Seller Releasor releases its rights and interests
under this Agreement, or the other Transaction Documents and (ii) nothing in this Section 9.12(b) shall relieve, limit, or restrict
the rights and remedies of any party with respect to claims on the basis of Fraud.
[Signature
Page Follows]
48
IN
WITNESS WHEREOF, this Agreement is executed by the Parties on the date set forth above.
SELLERS:
BRISCOE
WIND PROJECT HOLDINGS I, LLC
By:
/s/
Gintare Briola
Name:
Gintare
Briola
Title:
Authorized
Signatory
By:
/s/
Dario Bertagna
Name:
Dario
Bertagna
Title:
Authorized
Signatory
JPM
CAPITAL CORPORATION
By:
/s/
Scott Abramson
Name:
Scott
Abramson
Title:
Vice
President
MORGAN
STANLEY WIND LLC
By:
/s/
Darren Ho
Name:
Darren
Ho
Title:
Vice
President
BUYER:
SOLUNA
DV WIND SPONSORCO, LLC
By:
/s/
John Belizaire
Name:
John
Belizaire
Title:
Chief
Executive Officer
EX-10.2
EX-10.2
Filename: ex10-2.htm · Sequence: 6
Exhibit
10.2
Execution
Version
CONSENT
AND AMENDMENT NO. 1 TO CREDIT AND GUARANTY AGREEMENT AND AMENDMENT NO. 1 TO PLEDGE AGREEMENT
This
Consent and Amendment No. 1 to Credit and Guaranty Agreement and Amendment No. 1 to Pledge Agreement, dated as of April 1, 2026 (this
“Amendment”), amends (i) that certain Credit and Guaranty Agreement, dated as of September 12, 2025 (the “Existing
Credit Agreement”, and as the same may be further amended, amended and restated, restated, modified or supplemented and in
effect from time to time, the “Credit Agreement”), by and among Soluna DVSL ComputeCo, LLC, a Delaware limited liability
company (the “Dorothy 1A Borrower”), Soluna DVSL II ComputeCo, LLC, a Delaware limited liability company (the “Dorothy
2 Borrower”, and together with the Dorothy 1A Borrower, the “Tranche A Borrowers”), Soluna KK I ComputeCo
LLC, a Delaware limited liability company (the “Tranche B Borrower”, and together with the Tranche A Borrowers, the
“Existing Borrowers”), Soluna DV Services, LLC, a Nevada limited liability company (“Soluna Services”),
Soluna KK Energy ServiceCo, LLC, a Nevada limited liability company (“Energy Services”), Generate Lending, LLC, as
administrative agent (in such capacity, the “Administrative Agent”), and as collateral agent (in such capacity, the
“Collateral Agent”) and the lenders from time to time party thereto (collectively, the “Lenders”);
and (ii) that certain Pledge Agreement (the “Pledge Agreement”) dated as of September 12, 2025, among the Existing
Borrowers, Soluna Services, Energy Services, each of the entities listed on the signature pages thereof as a “Pledgor” and
the Collateral Agent.
W
I T N E S S E T H
A.
WHEREAS, each Existing Borrower is financing, refinancing, developing or constructing the respective Project owned by such Existing Borrower,
as further set forth in the Existing Credit Agreement.
B.
WHEREAS, Soluna DV Wind SponsorCo, LLC, a Delaware limited liability company (the “Tranche C Borrower”, and together
with each Existing Borrower, the “Borrowers”, and each, a “Borrower”) desires to purchase one hundred
percent (100%) of the equity interests in Briscoe Wind Farm, LLC, a Delaware limited liability company (the “Briscoe Project
Company”), which owns a 149.85 MW wind project located in Briscoe and Floyd counties, Texas (the “Briscoe Project”).
C.
WHEREAS, in order to finance the acquisition of the Briscoe Project Company by the Tranche C Borrower, upon the date hereof, each Existing
Borrower and the Tranche C Borrower desire to enter into this Amendment, at which time the Tranche C Borrower shall become party to the
applicable Loan Documents, and the Lenders shall instate the Tranche C Loan Commitments;
D.
WHEREAS, in accordance with Section 2.06 (Additional Tranche Loan Amendment) and Section 11.01 (Amendments) of the Existing
Credit Agreement, the Borrowers, Administrative Agent, Collateral Agent and all Lenders party hereto agree to amend the Existing Credit
Agreement, on the terms and subject to the conditions of this Amendment. As used in this Amendment, capitalized terms which are not defined
herein shall have the meanings ascribed to such terms in Section 1.01 (Definitions) of the Credit Agreement (taking into account
the amendments set forth in Exhibit A hereto); and
E.
WHEREAS, in consideration of the premises and to induce the Lenders to make the Additional Tranche Loans, each of the entities listed
on the signature pages thereof as a “Pledgor” and the Collateral Agent agree to amend the Pledge Agreement in accordance
with Section 7.1 (Amendments) of the Pledge Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged by each of the parties hereto, the parties hereby covenant and agree
as follows:
1.
Amendments to Credit Agreement. Each of the following shall occur as of the First Amendment Effective Date:
(a)
The Credit Agreement (excluding all Exhibits and Schedules thereto, other than as expressly set forth herein) shall be amended as set
forth in Annex 1 attached hereto, such that all of the newly inserted double-underlined provisions therein (indicated textually
in the same manner as the following example: double-underlined
text) shall be deemed to be inserted and all of the stricken text therein (indicated textually in the same manner as the following
example: stricken text) shall be deemed to be deleted therefrom;
(b)
Exhibit E-2 (Form of Monthly Operating Statement) to the Credit Agreement shall be amended and restated in its entirety with Annex
1-E-2 attached hereto;
(c)
Exhibit E-3 (Form of Quarterly Operating Report) to the Credit Agreement shall be amended and restated in its entirety with Annex
1-E-3 attached hereto;
(d)
Exhibit E-4 (Form of Quarterly Contracted DSCR Report) to the Credit Agreement shall be amended and restated in its entirety with
Annex 1-E-4 attached hereto;
(e)
Exhibit G (Form of Operating Budget) to the Credit Agreement shall be amended and restated in its entirety with Annex 1-G
attached hereto;
(f)
A new Exhibit H-2 (Form of Briscoe Mortgage) shall be added to the Credit Agreement in the form of Annex 1-H-2 attached
hereto;
(g)
A new Exhibit I-2 (Form of Warrants) shall be added to the Credit Agreement in the form of Annex 1-I-2 attached hereto;
(h)
A new Exhibit N (Form of Briscoe MIPA) shall be added to the Credit Agreement in the form of Annex 1-N attached hereto;
(i)
A new Exhibit O (Form of BNSF Consent) shall be added to the Credit Agreement in the form of Annex 1-O attached hereto;
(j)
A new Schedule III (Briscoe Project Leases) shall be added to the Credit Agreement in the form of Annex 1-III attached
hereto;
(k)
Schedule 2.01 (Lender’s Commitments) shall be amended and restated in its entirety with Annex 1-2.01 attached hereto;
(l)
Schedule 2.01(n) (Amortization Schedule) shall be amended and restated in its entirety with Annex 1-2.01(n) attached hereto;
(m)
Schedule 2.03 (Target Debt Balance) shall be amended and restated in its entirety with Annex 1-2.03 attached hereto;
(n)
Schedule 4.01(a)(ii) (Organizational Structure; Loan Parties; Ownership Percentages) shall be amended and restated in its entirety
with Annex 1-4.01(a)(ii) attached hereto;
(o)
Schedule 4.10 (Litigation) shall be amended and restated in its entirety with Annex 1-4.10 attached hereto;
(p)
Schedule 4.13 (Indebtedness) shall be amended and restated in its entirety with Annex 1-4.13 attached hereto;
(q)
Schedule 4.18 (Permits) shall be amended and restated in its entirety with Annex 1-4.18 attached hereto;
(r)
Schedule 4.21 (Material Project Documents) shall be amended and restated in its entirety with Annex 1-4.21 attached hereto;
(s)
Schedule 6 (Consents) shall be amended and restated in its entirety with Annex 1-6 attached hereto;
(t)
A new Schedule A (Briscoe Representations and Warranties) shall be added to the Credit Agreement in the form of Annex 1-A
attached hereto;
(u)
A new Schedule B (Disclosures) shall be added to the Credit Agreement in the form of Annex 1-B attached hereto; and
(v)
A new Schedule C (Briscoe Project Documents and Permits) shall be added to the Credit Agreement in the form of Annex 1-C
attached hereto.
2.
Amendments to Pledge Agreement. The Pledge Agreement (excluding all Exhibits and Schedules thereto, other than as expressly set
forth herein) shall be amended as set forth in Annex 2 attached hereto, such that all of the newly inserted double-underlined
provisions therein (indicated textually in the same manner as the following example: double-underlined
text) shall be deemed to be inserted and all of the stricken text therein (indicated textually in the same manner as the following
example: stricken text) shall be deemed to be deleted therefrom.
(a)
Annex 1 (Membership Interests) of the Pledge Agreement shall be amended and restated in its entirety with Annex 2-1 attached hereto;
and
(b)
Annex 2 (Pledgor Details) of the Pledge Agreement shall be amended and restated in its entirety with Annex 2-2 attached hereto.
3.
Conditions Precedent. This Amendment will become effective on the date (the “First Amendment Effective Date”)
on which each of the following conditions have been satisfied (or waived in writing by each Lender) in accordance with the following
terms:
(a)
each of the conditions set forth in Section 5.04 of the Credit Agreement (as amended pursuant to this Amendment) shall have been satisfied
or waived in respect of the Briscoe Project and the Tranche C Borrower;
(b)
the Administrative Agent shall have received a Consent with respect to that certain Membership Interest Purchase Agreement, by and between
Briscoe Wind Project Holdings I, LLC and juwi Wind, LLC;
(c)
the Administrative Agent shall have received a duly executed a Pledge Accession Agreement, by and between the Tranche C Borrower and
the Collateral Agent, substantially in the form attached to the Pledge and Security Agreement as Exhibit A thereto; and
(e)
the Administrative Agent shall have received the First Amendment Generate Lender Fee Letter duly executed and delivered by the Tranche
C Borrower and shall have paid or shall pay contemporaneously with the occurrence of the First Amendment Effective Date, all fees due
thereunder, the Up-Front Fee for the Tranche C Commitments and all other fees, costs and other expenses and amounts then due and payable
by the Loan Parties pursuant to the Loan Documents; provided that invoices for such fees, costs and expenses have been received
by the Loan Parties prior to the First Amendment Effective Date.
4.
No Default or Event of Default. The undersigned signatory of the Borrower hereby certifies that he or she is an Authorized Officer
of the Borrower and, solely in such capacity and not in his or her personal capacity, hereby certifies to the Agents and the other Secured
Parties, on behalf of the Borrower, as of date hereof and the First Amendment Effective Date, that (after giving effect to this Amendment)
no Default or Event of Default has occurred and is continuing or could reasonably be expected to result from the consummation of this
Amendment.
5.
Reaffirmation and Accession.
(a)
Each Guarantor that is a party hereto hereby consents to the terms and conditions of this Amendment. In addition, each such Guarantor
hereby (i) affirms and confirms its guarantees, pledges, grants and other undertakings under the Collateral Documents to which it is
a party and the other Loan Documents to which it is a party and (ii) agrees that (A) each Loan Document to which it is a party shall
continue to be in full force and effect (as amended by this Amendment) and (B) all guarantees, pledges, grants and other undertakings
thereunder shall continue to be in full force and effect (as amended by this Amendment) and shall accrue to the benefit of the Secured
Parties.
(b)
Each Guarantor that is a party hereto hereby acknowledges, confirms and agrees that (i) the Collateral Agent, on behalf of the Secured
Parties, has and shall continue to have valid, enforceable and perfected first-priority liens upon and security interests in the Collateral
heretofore granted by it to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Security Agreement and (ii)
any other security interests or liens granted by it to the Collateral Agent pursuant to any other Loan Document in effect as of the date
hereof shall continue to be valid, enforceable first-priority liens and security interests, subject, in each case, only to Permitted
Liens.
(c)
The Tranche C Borrower hereby acknowledges, agrees and confirms that it has received and reviewed a copy of the Loan Documents and, from
and after the First Amendment Effective Date, shall be, and shall have all of the rights and obligations of, a Borrower thereunder with
the same force and effect as if originally named therein as a Borrower. The Tranche C Borrower hereby ratifies, as of the First Amendment
Effective Date, and accedes to and agrees to be bound by and comply with, all of the terms, provisions and conditions applicable to the
Borrowers contained in the Amended Credit Agreement and the other Loan Documents.
(d)
The Tranche C Pledgor hereby acknowledges, agrees and confirms that it has received and reviewed a copy of the Loan Documents and, from
and after the First Amendment Effective Date, shall be, and shall have all of the rights and obligations of, a Pledgor thereunder with
the same force and effect as if originally named therein as a Pledgor, and the Tranche C Pledgor hereby agrees to all the terms and provisions
of the Loan Documents applicable as a Pledgor hereunder. The Tranche C Pledgor hereby ratifies, as of the First Amendment Effective Date,
and accedes to and agrees to be bound by and comply with, all of the terms, provisions and conditions applicable to the Pledgors contained
in the Amended Credit Agreement and the other Loan Documents.
6.
Miscellaneous.
(a)
Limited Effect. This Amendment is limited in effect and, except as specifically set forth above, shall be applicable solely with
respect to those matters expressly provided herein and no other amendments, waivers or consents may be construed or implied. This Amendment
shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties
hereto. Except as expressly waived pursuant to the terms of this Amendment, the terms and conditions of the Credit Agreement and the
other Loan Documents remain in full force and effect and are hereby ratified and affirmed.
(b)
Severability. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and without affecting
the validity or enforceability of any provision in any other jurisdiction.
(c)
Entire Agreement. This Amendment constitutes the entire agreement among the parties with respect to the matters dealt with herein.
All previous documents, undertakings and agreements, whether verbal, written or otherwise, among the parties with respect to the subject
matter of this Amendment, are hereby cancelled and superseded and shall not affect or modify any of the terms or obligations set forth
in this Amendment. Upon the First Amendment Effective Date, this Amendment shall be binding upon and inure to the benefit of the Parties.
(d)
No Modification. Except as expressly set forth herein, each of the Credit Agreement, the Security Agreement, and the other Loan
Documents is and shall remain unchanged and in full force and effect, and nothing contained in this Amendment shall, by implication or
otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or any of the other Secured
Parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained
in each of the Credit Agreement, the Security Agreement and any other Loan Document.
(e)
Headings. The headings of various sections of this Amendment are for convenience of reference only, do not constitute a part hereof
and shall not affect the meaning or construction of any provision hereof.
(f)
Incorporation by Reference. Sections 11.02 (Notices; Copies of Notices; Other Information), 11.07 (Successors and Assigns),
11.08 (Severability), 11.11 (Governing Law), 11.12 (Waiver of Jury Trial), 11.13 (Counterparts; Integration;
Effectiveness), and 11.14 (Confidentiality) of the Credit Agreement are hereby incorporated by reference herein, mutatis
mutandis.
(g)
Loan Document and Reference to the Credit Agreement. This Amendment shall be deemed to be a Loan Document, and on and after the
First Amendment Effective Date, each reference in the Credit Agreement, the Security Agreement and the Pledge Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein” and words of like import referring to the Credit
Agreement, the Security Agreement and the Pledge Agreement, as the case may be, and each reference in the other Loan Documents to “the
Credit Agreement”, “Security Agreement”, “Pledge Agreement”, “thereunder”, “thereof”,
“therein” and words of like import referring to the Credit Agreement, the Security Agreement, or Pledge Agreement shall mean
and be a reference to the Credit Agreement, the Security Agreement, or the Pledge Agreement, as the case may be as amended by this Amendment.
(h)
Agents. The Administrative Agent and the Collateral Agent shall be entitled to all of the rights, benefits, protections, indemnities
and immunities afforded to it pursuant to the Credit Agreement and the related documents, and shall exercise all rights and remedies
hereunder and provide any consents, directions, approvals, acceptances, determinations, certifications, rejections or other similar actions
pursuant to this Amendment in accordance with directions received from the Lenders under the Credit Agreement, and shall have no liability
for taking any such actions or failing to take any such actions in accordance with such directions (and shall not be liable for any failure
or delay in taking such actions resulting from any failure or delay by the Lenders under the Credit Agreement in providing such directions).
IN
WITNESS WHEREOF, the parties hereto have caused this Consent and Amendment No. 1 to Credit and Guaranty Agreement, and Amendment No.
1 to Pledge Agreement to be duly executed and delivered by their duly authorized officers as of the day and year first above written.
SOLUNA
DV WIND SPONSORCO, LLC,
As
Borrower, Guarantor And Grantor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
DVSL COMPUTECO, LLC,
As
Borrower, Guarantor And Grantor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
DVsl II COMPUTECO, LLC,
As
Borrower, Guarantor And Grantor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
kk i COMPUTECO, LLC,
As
Borrower, Guarantor And Grantor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
[Signature Page to Consent and Amendment No. 1 to
Credit and Guaranty Agreement, Amendment No. 1 to Pledge and Security Agreement, and Amendment No. 1 to Pledge Agreement]
Soluna
DV Services, LLC,
As
Guarantor And Grantor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
KK ENERGY SERVICECO, LLC
As
Guarantor And Grantor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
[Signature
Page to Consent and Amendment No. 1 to Credit and Guaranty Agreement and Amendment No. 1 to Pledge Agreement]
SOLUNA
DVSL HOLDCO, LLC,
as
the Dorothy 1A Pledgor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
DVSL II HOLDCO, LLC,
as
the Dorothy 2 Pledgor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
KKSL HOLDCO LLC,
as
the Kati Pledgor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
DV ENERGY HOLDCO, LLC,
as
the Soluna Services Pledgor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
KK ENERGY HOLDCO, LLC,
as
the Energy Services Pledgor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
SOLUNA
DV WIND HOLDCO, LLC,
as
the Tranche C Pledgor
By:
/s/
John Belizaire
Name:
John Belizaire
Title:
President
[Signature
Page to Consent and Amendment No. 1 to Credit and Guaranty Agreement and Amendment No. 1 to Pledge Agreement]
ADMINISTRATIVE
AGENT:
GENERATE
LENDING, LLC,
a
Delaware limited liability company
By:
/s/
Scott Gosselink
Name:
Scott Gosselink
Title:
Authorized Signatory
[Signature
Page to Consent and Amendment No. 1 to Credit and Guaranty Agreement and Amendment No. 1 to Pledge Agreement]
COLLATERAL
AGENT:
GENERATE
LENDING, LLC,
a
Delaware limited liability company
By:
/s/
Scott Gosselink
Name:
Scott Gosselink
Title:
Authorized Signatory
[Signature
Page to Consent and Amendment No. 1 to Credit and Guaranty Agreement and Amendment No. 1 to Pledge Agreement]
LENDER:
GENERATE
STRATEGIC CREDIT MASTER FUND I-A, L.P.
a
Delaware limited liability company
By:
/s/
Scott Gosselink
Name:
Scott
Gosselink
Title:
Authorized
Signatory
[Signature
Page to Consent and Amendment No. 1 to Credit and Guaranty Agreement and Amendment No. 1 to Pledge Agreement]
EX-10.3
EX-10.3
Filename: ex10-3.htm · Sequence: 7
Exhibit
10.3
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
This
Amended and Restated Registration Rights Agreement (this “Agreement”) is made and entered into as of April 1, 2026,
by and between Soluna Holdings, Inc., a Nevada corporation (together with any successor entity thereto, the “Company”),
on the one hand, and Generate Strategic Credit Master Fund I-B, L.P. (the “Warrant Holder”), on the other hand.
WHEREAS,
in connection with the Amendment No. 1 to the Credit and Guaranty Agreement, and Amendment No. 1 to Pledge Agreement, dated as of April
1, 2026 (the “Credit Agreement”), by and among Soluna DVSL ComputeCo, LLC, Soluna DVSL II ComputeCo, LLC, Soluna KK
I ComputeCo LLC, Soluna DV Services, LLC, Soluna KK Energy ServiceCo, LLC, Soluna DV Wind SponsorCo, LLC, the financial institutions
from time to time party thereto as lenders (the “Lenders”), Generate Lending, LLC, as administrative agent for the
Lenders, and Generate Lending, LLC, as collateral agent for the Lenders, the Company has agreed to issue the Warrants (as defined below)
to the Warrant Holder under the conditions set forth therein; and
WHEREAS,
in connection with the issuance of the Warrants to the Warrant Holder, the Company has agreed to provide the Warrant Holder the registration
rights provided for in this Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and the Warrant Holder hereby agree as follows:
1.
Definitions. As used in this Agreement, the following terms have the respective meanings set forth in this Section 1 and
other terms are defined throughout this Agreement:
“Affiliate”
means, with respect to any person, any other person (for all purposes hereunder, including any entities or individuals) that directly
or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first person.
“Business
Day” means a day other than Saturday, Sunday or any other day which commercial banks in New York, New York are authorized or
required by law to close.
“Commission”
means the U.S. Securities and Exchange Commission.
“Common
Stock” means the common stock, par value $0.001 per share, of the Company.
“Effective
Date” means, as to a Registration Statement, the date on which such Registration Statement is first declared effective by the
Commission.
“Effectiveness
Deadline” means on or prior to 75th calendar day after the Filing Date (or the 30th calendar day if the
Commission does not review the Registration Statement); provided, that, in the event the Commission rules and regulations prohibit
the Registration Statement from being declared effective on or prior to the date determined above, the Company may delay the Effectiveness
Deadline until the tenth (10th) Business Day following the date that the Commission rules and regulations no longer prohibit
such Registration Statement from being declared effective.
“Effectiveness
Period” means, as to any Registration Statement required to be filed pursuant to this Agreement, the period commencing on the
Effective Date of such Registration Statement and ending on the earliest of: (a) the date that all of the Registrable Securities covered
by such Registration Statement have been publicly sold by the Holders of the Registrable Securities included therein, (b) the date that
all of the Registrable Securities covered by such Registration Statement have been previously sold in accordance with Rule 144, (c) such
time as both (i) all of such Registrable Securities covered by such Registration Statement may be sold by the Holders without any restriction
pursuant to Rule 144, including holding period, volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement
for the Company to be in compliance with the current public information requirement under Rule 144 (assuming the Holder is not then an
Affiliate of the Company), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed
and acceptable to the Company’s transfer agent and the affected Holders, and (ii) each such Holder, together with its Affiliates,
holds less than 3.0% of the Company’s then outstanding shares of Common Stock, or (d) five (5) years from the Effective Date of
the first Registration Statement filed with the Commission registering for resale the Registrable Securities.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Filing
Date” means the later of (i) the fifteenth (15th) calendar day following the date hereof and (ii) September 1, 2025.
“Governmental
Entity” means any federal, national, state, local, municipal, international, or multinational government or political subdivision
thereof, governmental department, commission, board, bureau, agency, taxing, or regulatory authority, judicial, or administrative body,
official, tribunal, or other instrumentality of any government, whether federal, state, or local, domestic, or foreign, or arbitrator
or SRO.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities and, if
other than the Warrant Holder, a Person to whom the rights hereunder have been properly assigned pursuant to Section 11 hereof.
“Losses”
has the meaning given to it in Section 9(a).
“New
York Courts” means the state and federal courts sitting in the City of New York, Borough of Manhattan, State of New York.
“Person”
means an individual, company, corporation, partnership, limited liability company, trust, body corporate (wherever located), or other
entity, organization, or unincorporated association, including any Governmental Entity.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such
as a deposition), whether commenced or threatened.
“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 under
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: (i) the Warrants, (ii) the shares of Common Stock issuable upon exercise of the Warrants; and (iii) any
securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event, or any price adjustment
as a result of such stock splits, reverse stock splits or similar events with respect to any of the securities referenced in clause (ii)
above. Notwithstanding the foregoing, a security shall cease to be a Registrable Security for purposes of this Agreement (and the Company
shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for
so long as (a) 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 (in which case, only any security disposed of by such Holder shall cease to be a Registrable Security), (b) such Registrable
Securities have been previously sold in accordance with Rule 144 (in which case, only any security disposed of by such Holder shall cease
to be a Registrable Security) or (c) both (i) the Holder of such Registrable Securities may resell such securities without any restriction
under Rule 144, including holding period, volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for
the Company to be in compliance with the current public information requirement under Rule 144 (assuming the Holder is not then an Affiliate
of the Company), as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable
to the Company’s transfer agent and the affected Holders, and (ii) such Holder holds, together with its Affiliates, less than 3.0%
of the Company’s then outstanding shares of Common Stock.
“Registration
Statement” means any registration statement of the Company filed or confidentially submitted with the Commission under the
Securities Act that covers the resale of Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to 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, if any, in such registration statement.
“Required
Holders” means the Holders of a majority of the outstanding Warrants on an as-exercised basis.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule
144 Block Trade” means an offering and/or sale of Registrable Securities made pursuant to Rule 144 on a block trade basis,
including a same day trade, overnight trade or similar transaction.
“Rule
172” means Rule 172 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule
415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended.
“SRO”
means any (i) “self-regulatory organization” as defined in Section 3(a)(26) of the Exchange Act, (ii) other United States
or foreign securities exchange, futures exchange, commodities exchange, or contract market, or (iii) other securities exchange.
“Trading
Market” means any of the New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market,
the Nasdaq Capital Market, or any other national securities exchange, or OTCQB or OTCQX (or any successors to any of the foregoing).
“Underwritten
Offering” means an offer and/or sale of securities of the Company to an underwriter or underwriters for reoffering to the public.
“Warrants”
means warrants to purchase Common Stock issued pursuant to the Credit Agreement.
2.
Registration.
(a)
On or prior to the applicable Filing Date, the Company shall prepare and file or confidentially submit with the Commission a Registration
Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 (a “Resale Shelf Registration Statement”). The Resale
Shelf Registration Statement shall be on Form S-3, or if Form S-3 is not available to the Company, another appropriate form. The Resale
Shelf Registration Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon
a review of such Resale Shelf Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall
not occur unless such characterization is consistent with written information provided by the Holder in the Selling Holder Questionnaire)
a “Plan of Distribution” in substantially the form attached hereto as Annex A. The Company shall cause the Resale
Shelf Registration Statement to be declared effective under the Securities Act as soon as reasonably practicable but, in any event, no
later than the Effectiveness Deadline, and shall use its commercially reasonable efforts to keep such Resale Shelf Registration Statement
continuously effective during its entire Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following
the Effective Date of the Resale Shelf Registration Statement, the Company shall file with the Commission in accordance with Rule 424
under the Securities Act the final prospectus to be used in connection with sales pursuant to such Resale Shelf Registration Statement
(whether or not such filing is technically required under such Rule).
(b)
In the event that the Registrable Securities are initially registered on Form S-1 pursuant to Section 2(a) hereof and the Company
subsequently becomes eligible to use a registration statement on Form S-3, promptly following such date on which the Company becomes
eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall file a Registration
Statement on Form S-3 covering all securities that are then deemed Registrable Securities (or a post-effective amendment on Form S-3
to the then effective Registration Statement) for an offering to be made on a continuous basis pursuant to Rule 415 (an “S-3
Resale Shelf Registration Statement”) and shall cause such S-3 Resale Shelf Registration Statement to be filed as soon as commercially
reasonable and declared effective under the Securities Act as soon as reasonably possible thereafter. Such S-3 Resale Shelf Registration
Statement shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such
S-3 Resale Shelf Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur
unless such characterization is consistent with written information provided by the Holder in the Selling Holder Questionnaire) a “Plan
of Distribution” in substantially the form attached hereto as Annex A. The Company shall use its commercially reasonable
efforts to keep such S-3 Resale Shelf Registration Statement continuously effective under the Securities Act during the entire Effectiveness
Period. By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such S-3 Resale Shelf Registration
Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be
used in connection with sales pursuant to such S-3 Resale Shelf Registration Statement (whether or not such filing is technically required
under such Rule). For the avoidance of doubt, the Company shall maintain the effectiveness of the Form S-1 then in effect until such
time as an S-3 Resale Shelf Registration Statement has been declared effective by the Commission.
(c)
[Reserved].
(d)
The Company will give notice of its intention to file any Registration Statement to the Holders at least five (5) Business Days prior
to the intended filing date of such Registration Statement. Each Holder agrees to furnish to the Company a completed Questionnaire in
the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”) at least three (3) Business
Days prior to the anticipated filing date of such Registration Statement. If a Holder does not provide all such information the Company
may reasonably request (a “Non-Complying Holder”), that Holder will not be named as a selling securityholder in the
Prospectus and will not be permitted to sell its securities under such Registration Statement. From and after the effective date of such
Registration Statement, the Company shall use its commercially reasonable efforts, as promptly as is practicable after a Non-Complying
Holder delivers the information required pursuant to the previous two sentences, (i) if required by applicable law, to file with the
Commission a post-effective amendment to such Registration Statement; and, if the Company shall file a post-effective amendment to such
Registration Statement, use reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities
Act as promptly as is practicable; or (ii) to prepare and, if permitted or required by applicable law, to file a supplement to the related
Prospectus or an amendment or supplement to any document incorporated therein by reference or file any other required document so that
the Non-Complying Holder is named as a selling securityholder in such Registration Statement and the related Prospectus, and so that
such Holder is permitted to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law; provided,
that the Company shall not be required to file more than one post-effective amendment under this clause (b) in any calendar quarter.
3.
Piggyback Registrations.
(a)
Subject to the terms and conditions hereof, until the expiration of the Effectiveness Period, in the event a Registration Statement covering
all Registrable Securities is not effective, whenever the Company proposes to register any Common Stock (or any other securities that
are of the same class or series as any Registrable Securities that are not shares of Common Stock) under the Securities Act (other than
a registration by the Company (i) on Form S-4, (ii) on Form S-8 or (iii) pursuant to Section 2, the foregoing, each, an “Excluded
Registration Statement”) or conduct an Underwritten Offering pursuant to a then-effective registration statement (other than
an Excluded Registration Statement) (any such registration or offering, a “Piggyback Registration”), whether for its
own account or for the account of others, the Company shall give each Holder prompt written notice thereof (but not less than ten Business
Days prior to the filing by the Company with the Commission of any registration statement or prospectus supplement, as applicable, with
respect thereto). Such notice (a “Piggyback Notice”) shall specify the number of shares of Common Stock (or other
securities, as applicable) proposed to be registered or offered, as applicable, the proposed date of filing of such registration statement
or prospectus supplement, with the Commission, the proposed means of distribution, the proposed managing underwriter(s) (if any), and
a good faith estimate by the Company of the proposed minimum offering price of such shares of Common Stock (or other securities, as applicable),
in each case to the extent then known. Subject to Section 3(b), the Company shall include in each such Piggyback Registration
all Registrable Securities held by each Holder (a “Piggyback Seller”) with respect to which the Company has received
written requests (which written requests shall specify the number of Registrable Securities requested to be disposed of by such Piggyback
Seller) for inclusion therein within ten calendar days after such Piggyback Notice is received by such Piggyback Seller.
(b)
If, in connection with a Piggyback Registration that involves an Underwritten Offering, the lead managing underwriter(s) advise(s) the
Company that, in its opinion, the inclusion of all the securities sought to be included in such Piggyback Registration by (w) the Company,
(x) other Persons who have sought to have shares of Common Stock registered in such Piggyback Registration pursuant to rights granted
by the Company to demand such registration (such Persons, being “Other Demanding Sellers”), (y) the Piggyback Sellers
and (z) any other proposed sellers of shares of Common Stock (such Persons being “Other Proposed Sellers”), as the
case may be, would materially and adversely affect the success thereof, then the Company shall include in the registration statement
applicable to such Piggyback Registration only such securities as the Company is so advised by such lead managing underwriter(s) can
be sold without such an effect, as follows and in the following order of priority:
(i)
if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of shares of Common
Stock (or other securities, as applicable) to be sold by the Company as the Company, in its reasonable judgment, shall have determined,
(B) second, a pro rata number of shares of Common Stock to consist of (y) Registrable Securities of Piggyback Sellers, pro rata on the
basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, and (z) shares of Common Stock held by Other
Demanding Sellers having rights of registration on parity with the Piggyback Sellers with respect to such offering (in each case, based
on the number of shares of Common Stock properly requested to be included in such offering), (C) third, shares of Common Stock sought
to be registered by Other Demanding Sellers not otherwise encompassed by clause (B) of this Section 3(b)(i) pro rata on the basis
of the number of shares of Common Stock proposed to be sold by such Other Demanding Sellers, and (D) fourth, other shares of Common Stock
proposed to be sold by any Other Proposed Sellers; or
(ii)
if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of shares
of Common Stock (or other securities, as applicable) sought to be registered by each Other Demanding Seller pro rata in proportion to
the number of securities sought to be registered by all such Other Demanding Sellers, (B) second, Registrable Securities of Piggyback
Sellers, pro rata on the basis of the number of Registrable Securities proposed to be sold by such Piggyback Sellers, (C) third, shares
of Common Stock to be sold by the Company, and (D) fourth, other shares of Common Stock proposed to be sold by any Other Proposed Sellers.
(c)
For clarity, in connection with any Underwritten Offering under this Section 3 for the Company’s account, the Company shall
not be required to include the Registrable Securities of a Piggyback Seller in the Underwritten Offering unless such Piggyback Seller
accepts the reasonable and customary terms of the underwriting as agreed upon between the Company and the lead managing underwriter(s),
which shall be selected by the Company (subject to such lead managing underwriter(s) being reasonably acceptable to the Piggyback Sellers,
such acceptance not to be unreasonably withheld, delayed or conditioned).
(d)
If, at any time after giving written notice of its intention to register any shares of Common Stock (or other securities, as applicable)
as set forth in this Section 3 and prior to the time the registration statement filed in connection with such Piggyback Registration
is declared effective, the Company shall determine for any reason not to register such shares of Common Stock (or other securities, as
applicable), the Company may, at its election, give written notice of such determination to the Piggyback Sellers within five Business
Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular
withdrawn or abandoned Piggyback Registration.
4.
Withdrawal Rights. Any Holder having notified or directed the Company to include any or all of its Registrable Securities in a
registration statement under the Securities Act or an Underwritten Offering shall have the right to withdraw any such notice or direction
with respect to any or all of the Registrable Securities designated by it for registration or offering, as applicable, by giving written
notice to such effect to the Company prior to the effective date of such registration statement or the pricing date of such Underwritten
Offering, as applicable. In the event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable
registration or Underwritten Offering and such Registrable Securities shall continue to be Registrable Securities for all purposes of
this Agreement (subject to the other terms and conditions of this Agreement). No such withdrawal shall affect the obligations of the
Company with respect to the Registrable Securities not so withdrawn
5.
Rule 144 Block Trades. Upon request and at least three (3) Business Days advance notice by the Holder, the Company shall use its
commercially reasonable efforts to cooperate in a timely manner with reasonable requests by the Holder with respect to any Rule 144 Block
Trade by the Holder, including delivery of customary certificates to the Company’s transfer agent or the Holder’s broker,
but excluding the delivery of legal opinions, disclosure letters or comfort letters.
6.
Registration Procedures. In connection with the Company’s registration obligations hereunder:
(a)
The Company shall not file a Registration Statement, any Prospectus or any amendments or supplements thereto in which the “Selling
Stockholders” section thereof materially differs from the disclosure received from a Holder in its Selling Holder Questionnaire
(as amended or supplemented). The Company shall not file a Registration Statement, any Prospectus or any amendments or supplements thereto
in which it (i) characterizes any Holder as an underwriter, unless such characterization is consistent with written information provided
by the Holder in the Selling Holder Questionnaire, (ii) excludes a particular Holder due to such Holder refusing to be named as an underwriter,
unless so required pursuant to written comments received from the Commission or (iii) reduces the number of Registrable Securities being
registered on behalf of a Holder without such Holder’s express written authorization. The Company shall also ensure that each Registration
Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any 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 prospectuses, in the light of the circumstances in which they were made) not misleading. Before filing such Registration Statement,
any Prospectus, or any amendments or supplements thereto, the Company will furnish to counsel to the Holders including Registrable Securities
in such registration or offering copies of all such documents proposed to be filed, which documents will be subject to the review and
reasonable comment of such counsel, and other documents reasonably requested by such counsel, including any comment letter from the Commission,
and, if requested by such counsel, the Company will provide such counsel reasonable opportunity to participate in the preparation of
such document(s). The Company shall not file any such Registration Statement, any Prospectus, or any amendments or supplements thereto
to which the Holders of a majority of Registrable Securities or their counsel shall reasonably object, in writing, on a timely basis,
unless, in the opinion of counsel for the Company, such filing is necessary to comply with applicable law.
(b)
Subject to an Allowed Grace Period (as defined below), the Company shall (i) prepare and file with the Commission such amendments, including
post-effective amendments, to each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep
such Registration Statement continuously effective as to the applicable Registrable Securities for its 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) to the extent required under applicable securities laws, prepare and file with the Commission such amendments,
including post-effective amendments, to each Registration Statement and the Prospectus used in connection therewith as may be necessary
to name new or additional selling securityholders to whom the rights hereunder have been properly assigned pursuant to Section 11
hereof, (iii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented
or amended to be filed pursuant to Rule 424, (iv) respond as promptly as reasonably possible to any comments received from the Commission
with respect to each Registration Statement or any amendment thereto and (v) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the Registration Statement(s) and the disposition of all Registrable Securities covered
by each Registration Statement.
(c)
The Company shall notify the Holders as promptly as reasonably possible (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; and (B) with respect to each Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of the issuance by the Commission 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;
(iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose;
and (iv) 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 such 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 such Registration Statement, Prospectus
or other documents so that, in the case of such 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 light of the circumstances under which they were made, not misleading.
(d)
The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness
of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction
and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and
to notify the Holders of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
(e)
The Company shall promptly deliver to the Holders, without charge, as many copies of each Prospectus or Prospectuses (including each
form of prospectus) and each amendment or supplement thereto as the Holders may reasonably request. The Company hereby consents to the
use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale
of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(f)
Prior to any public offering of Registrable Securities, the Company shall register or qualify such Registrable Securities for offer and
sale under the securities or blue sky laws of all jurisdictions within the United States as any Holder may reasonably request in writing,
to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and
all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered
by the Registration Statements; provided, however, in connection with any such registration or qualification, the Company
shall not be required to (i) qualify to do business in any jurisdiction where the Company would not otherwise be required to qualify,
(ii) subject itself to general taxation in any such jurisdiction, (iii) file a general consent to service of process in any jurisdiction
or (iv) make any change to the Company’s articles of incorporation or bylaws.
(g)
Except to the extent the Registrable Securities are eligible to be transferred in book-entry form through the facilities of the Depository
Trust Company or the book-entry system of the Company’s transfer agent, the Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the
Registration Statement(s). Such book-entry securities or certificates, as applicable, shall be free, to the extent permitted by applicable
federal securities laws, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered
in such names as any such Holders may request.
(h)
As promptly as reasonably possible upon the occurrence of any event contemplated by Section 3(c)(iv), the Company shall prepare
a supplement or amendment, including a post-effective amendment, to the affected Registration Statements 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, no Registration Statement nor any 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 the light of the circumstances under
which they were made, not misleading.
(i)
For so long as the Registrable Securities that have been registered under a Registration Statement remain Registrable Securities, the
Company shall notify the Holders thereof in writing of the happening of any event, as promptly as reasonably practicable after becoming
aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any
material, nonpublic information), and shall, subject to an Allowed Grace Period, promptly prepare a supplement or amendment to such Registration
Statement to correct such untrue statement or omission. The Company shall also notify the Holders of Registrable Securities that have
been registered under a Registration Statement in writing as promptly as reasonably possible when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and when the Registration Statement or any post-effective amendment relating to such Registrable
Securities has become effective.
(j)
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, file any final Prospectus, including any supplement
or amendment thereof, with the Commission pursuant to Rule 424, 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.
(k)
The Company shall use its commercially reasonable efforts to cause all of the Registrable Securities covered by a Registration Statement
to be listed on each Trading Market on which securities of the same class or series issued by the Company are then listed, if any, if
the listing of such Registrable Securities is then permitted under the rules of such Trading Market. The Company shall pay all fees and
expenses in connection with satisfying its obligation under this Section 3(k).
(l)
The Company shall cooperate with the Holders who hold Registrable Securities being offered and, to the extent applicable, facilitate
the timely preparation and delivery of certificates or book-entry securities (not bearing any restrictive legend to the extent permitted
by the federal securities laws) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable
such certificates or book-entry securities to be in such denominations or amounts, as the case may be, as the Holders may reasonably
request and registered in such names as the Holders may request.
(m)
If requested by a Holder and to the extent legally required for the Holder to offer and sell Registrable Securities, the Company shall
as soon as practicable, subject to an Allowed Grace Period: (i) incorporate in a prospectus supplement or post-effective amendment such
information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being
paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings
of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement
or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably requested by a Holder
holding any Registrable Securities.
(n)
Notwithstanding anything to the contrary contained herein, upon the advice of Company counsel, for a period (an “Allowed Grace
Period”) of not more than thirty (30) consecutive days or for a total of not more than sixty (60) days in any twelve (12) month
period, the Company may suspend the use of any Prospectus included in any Registration Statement contemplated by this Agreement in the
event that the Company determines in good faith that such suspension is necessary to (i) delay the disclosure of material nonpublic 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 (ii) amend or supplement the affected 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; provided, that the Company shall promptly (A) notify the Holder in writing of the commencement (and the termination)
of an Allowed Grace Period, but shall not (without the prior written consent of the Holder) disclose to the Holder any material nonpublic
information giving rise to an Allowed Grace Period, (B) advise the Holder in writing to cease all sales under such Registration Statement
until the end of the Allowed Grace Period and (C) use its commercially reasonable efforts to terminate an Allowed Grace Period as promptly
as practicable.
(o)
Other than the information regarding a Holder provided by such Holder to the Company for inclusion in a Registration Statement, the Company
shall hold in confidence and not make any disclosure of information concerning a Holder provided to the Company unless: (i) disclosure
of such information is necessary to comply with federal or state securities laws; (ii) the disclosure of such information is necessary
to avoid or correct a misstatement or omission in any Registration Statement; (iii) the release of such information is ordered pursuant
to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction; or (iv) such information
has been made generally available to the public other than by disclosure in violation of this Agreement. The Company agrees that it shall,
upon learning that disclosure of such information concerning a Holder is sought in or by a court or governmental body of competent jurisdiction
or through other means, to the extent legally permitted to do so or not requested by a governmental body to refrain from doing so, give
prompt written notice to such Holder and allow such Holder, at the Holder’s expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such information.
7.
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 registration statement is filed or becomes effective or 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 (A) with respect to filings required to be made
with any Trading Market on which the Common Stock is then listed or traded for trading and (B) in compliance with applicable state securities
or blue sky laws, reasonably agreed to by the Company in writing); (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested
by a Holder); (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; (vi) reasonable and documented fees and disbursements of one counsel
for all Holders whose Registrable Securities are included in a registration statement, which counsel shall be selected by the Holders
of a majority of the Registrable Securities being sold in connection therewith; and (vii) 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, without limitation, 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
Trading Market as required hereunder. In no event shall the Company be responsible for any broker or similar commissions incurred by
any Holder or, except to the extent provided for in the Credit Agreement, any legal fees or other cost of the Holders.
8.
Removal of Restrictive Legends. The restrictive legend on any Registrable Securities covered by this Agreement shall be removed
if (a) such Registrable Securities are sold pursuant to an effective registration statement, (b) with respect to Registrable Securities
held by the Warrant Holder, (i) a registration statement covering the resale of such Registrable Securities is effective under the Securities
Act and/or (ii) such Registrable Securities may be sold in compliance with Rule 144 under the Securities Act, and in either case the
Warrant Holder delivers to the Company a reasonably acceptable representation and/or “will comply” letter, as applicable,
certifying that, among other things, the Warrant Holder will only transfer such Registrable Securities pursuant to such effective registration
statement or Rule 144, as applicable, and will, upon request following any lapse of effectiveness of such registration statement or availability
of Rule 144, as applicable, cooperate with the Company to have any then applicable restrictive legends reincluded on such Registrable
Securities, (c) such Registrable Securities are being sold pursuant to Rule 144 under the Securities Act and the applicable Holder delivers
to the Company a representation letter regarding such Holder’s compliance with the terms thereof; provided, that with respect
to each of clause (a), (b) and (c) above, the applicable Holder has provided all documentation and evidence (which, in the case of clauses
(b) and (c), shall include an opinion of counsel to such Holder) as may reasonably be required by the Company or its transfer agent to
confirm that the legend may be removed under applicable securities laws (the “Legend Removal Documents”). The Company
shall cooperate with the applicable Holder covered by this Agreement to effect removal of the legend on such Registrable Securities pursuant
to this Section 8 as soon as reasonably practicable after delivery of notice from such Holder that the conditions to removal are
satisfied (together with any Legend Removal Documents). The Company shall bear all of its own direct costs and expenses associated with
the removal of a legend pursuant to this Section 8; provided, that the applicable Holder shall be responsible for all fees
and expenses (including of counsel for such Holder) incurred by such Holder with respect to delivering the Legend Removal Documents.
9.
Indemnification.
(a)
Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder and its Affiliates and their respective officers, directors, shareholders, agents, investment advisors, partners, managers,
members, consultants and employees 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, shareholders, agents, investment advisors, partners, managers,
members, consultants and employees of each such controlling Person, each underwriter, if any, and each Person who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter, to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’
fees), expenses, judgments, fines, penalties, charges and amounts paid in settlement (collectively, “Losses”), as
incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any 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 form of prospectus or supplement thereto, in light of the circumstances under which they were
made) not misleading, except to the extent, that such untrue statements or omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to
such Holder or such Holder’s proposed method of distribution of Registrable Securities and was furnished in writing to the Company
by or on behalf of such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto for this purpose). The Company
shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection
with the transactions contemplated by this Agreement. 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 11.
(b)
Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted
by applicable law, from and against all Losses, as incurred, arising solely out of or based solely upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment
or supplement thereto, or arising solely out of or based solely upon any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading to the extent, but only to the extent that, such untrue
statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by or on behalf of
such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and furnished in writing by or on behalf of such Holder expressly for use in the Registration
Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto (it being understood that the Holder
has approved Annex A hereto for this purpose). In no event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities 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 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 proximately
and materially adversely prejudiced the Indemnifying Party.
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,
in its discretion, 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 such Indemnified Party shall have been advised by counsel that a 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 such counsel shall be at the expense of the Indemnifying Party); provided, that, the
Indemnifying Party shall pay for no more than two separate sets of counsel for all Indemnified Parties. 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. 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 (i) imposes no liability or obligation on the
Indemnified Party, (ii) includes an unconditional release of such Indemnified Party from all liability on claims that are the subject
matter of such Proceeding and (iii) does not include any admission of fault, capability, wrongdoing or malfeasance by or on behalf of
the Indemnified Party.
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
9(c)) shall be paid to the Indemnified Party, as incurred, within ten (10) Business Days of written notice thereof to the Indemnifying
Party regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided,
that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such
actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject
to appeal or further review) not to be entitled to indemnification hereunder.
(d)
Contribution. If a claim for indemnification under Section 9(a) or 9(b) is unavailable to an Indemnified Party (by
reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute
to the amount paid or payable by such Indemnified Party as a result of such Losses, 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 Section 9(c), any reasonable attorneys’ or other reasonable
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 9(d) 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 9(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. Notwithstanding the provisions of this Section 9(d), (i) no Person involved in the sale of
Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities
Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who
was not guilty of fraudulent misrepresentation; and (ii) no Holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission.
The
indemnity and contribution agreements contained in this Section 9 are in addition to any liability that the Indemnifying Parties
may have to the Indemnified Parties.
10.
Reports Under the Exchange Act. With a view to making available to the Holders the benefits of Rule 144 or any other similar rule
or regulation of the Commission that may at any time permit the Holders to sell Registrable Securities of the Company to the public without
registration, the Company agrees, for so long as Registrable Securities are outstanding and held by the Holders, to:
(a)
make and keep public information available, as those terms are understood, defined and required in Rule 144;
(b)
file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the
Exchange Act so long as the Company is and remains subject to such requirements and the filing of such reports and other documents is
required for the applicable provisions of Rule 144; and
(c)
furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon reasonable request in writing by such Holder,
such information as may be reasonably and customarily requested to permit the Holders to sell such securities pursuant to Rule 144 without
registration.
11.
Assignment of Registration Rights. The rights under this Agreement shall be automatically assignable by the Warrant Holder to
any transferee of all or any portion of such Warrant Holder’s Warrants or Registrable Securities if: (i) the Warrant Holder agrees
in writing with the transferee or assignee to assign such rights and such transferee agrees to be bound by the terms of this Agreement,
and a copy of such agreement is furnished to the Company within five (5) Business Days after such assignment; (ii) the Company is, within
five (5) Business Days after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee
or assignee and (b) the securities with respect to which such registration rights are being transferred or assigned; (iii) immediately
following such transfer or assignment the further disposition of such securities by the transferee or assignee is, if applicable, restricted
under the Securities Act or applicable state securities laws; and (iv) at or before the time the Company receives the written notice
contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the
provisions contained herein.
12.
Miscellaneous.
(a)
Remedies. In the event of a breach by the Company or by a Holder, of any of their 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, will be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree 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
waive the defense that a remedy at law would be adequate.
(b)
Compliance. Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act
as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement.
(c)
Discontinued Disposition. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice
from the Company of the occurrence of any event of the kind described in Section 6(c), 6(i) or 6(n), such Holder
will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt
of the copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised in writing by the Company that
the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide
appropriate stop orders to enforce the provisions of this paragraph.
(d)
Conflicting Rights. The Company shall not grant to any Person any demand, piggyback, or shelf registration rights the terms of
which would violate the rights granted to the Holders hereunder, or provide for superior “cutback” priority relative to the
Holders, in each case, pursuant to Section 3(b)(i) and (ii) without the prior written consent of the Holders of a majority
of Registrable Shares (which majority, if the Warrant Holder at such time owns any Registrable Securities, must include the Warrant Holder).
(e)
Amendments and Waivers. Except as set forth otherwise herein, the provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be
given, without the written consent of the Company and the Required Holders. Notwithstanding the foregoing, a waiver or consent to or
departure from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder whose securities are
being sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders may be given by such Holder; provided that the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the first and second sentences of this paragraph.
(f)
Notices. All notices and other communications, provided for or permitted hereunder, shall be made in writing and delivered by
electronic mail (with receipt confirmed), overnight courier, registered or certified mail, return receipt requested, or by telegram:
(i)
if to a Holder, at the most current address given by the transfer agent and registrar of the Shares to the Company; or
(ii)
if to the Company, shall be sufficient in all respects if delivered to the Company at the offices of the Company at 325 Washington Ave
Extension, Albany, New York 12205, Attention: Chief Financial Officer.
(g)
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of
the parties hereto, including, without limitation and without the need for an express assignment or assumption, subsequent Holders.
(h)
Execution and Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall
be deemed to be an original and, all of which taken together shall constitute one and the same Agreement. In the event that any signature
is delivered by facsimile or email transmission, such signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) the same with the same force and effect as if such facsimile or email signature were the
original thereof.
(i)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to any principle
or rule that would require the application of the law of any other state. Each party agrees that all Proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective
affiliates, employees or agents) will be commenced in the New York Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally
subject to the jurisdiction of any New York Court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each
party hereto hereby irrevocably waives personal service of process and consents to process being served in any such 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 manner permitted by law. Each
party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. If either party shall commence a Proceeding
to enforce any provisions of this Agreement, then the prevailing party in such Proceeding shall be reimbursed by the other party for
its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.
(j)
Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
(k)
Entire Agreement. This Agreement and the Credit Agreement and the instruments referenced herein and therein constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein and therein. This Agreement, the Credit Agreement and the instruments
referenced herein and therein supersede all prior agreements and understandings among the parties hereto with respect to the subject
matter hereof and thereof.
(l)
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 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.
(m)
Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning
hereof.
(n)
Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder under this Agreement are several and
not joint with the obligations of any other Holder, and no Holder shall be responsible in any way for the performance of the obligations
of any other Holder under this Agreement. Nothing contained herein or in the Credit Agreement, and no action taken by any Holder pursuant
thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Holders are in any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement or the Credit Agreement, or with respect to any Holder’s beneficial ownership of its Registrable
Securities. Each Holder acknowledges that no other Holder will be acting as agent of such Holder in enforcing its rights under this Agreement.
Each Holder shall be entitled to independently 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.
The Company acknowledges that each of the Holders has been provided with the same Registration Rights Agreement for the purpose of closing
a transaction with multiple Holders and not because it was required or requested to do so by any Holder.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Amended and Restated Registration Rights Agreement as of the date first written above.
COMPANY:
SOLUNA
HOLDINGS, INC.
By:
/s/
John Belizaire
Name:
John
Belizaire
Title:
Chief
Executive Officer
Signature
Page to Amended and Restated Registration Rights Agreement
IN
WITNESS WHEREOF, the parties have executed this Amended and Restated Registration Rights Agreement as of the date first written above.
WARRANT
HOLDER:
GENERATE
STRATEGIC CREDIT MASTER FUND I-B, L.P.
By:
/s/
Scott Gosselink
Name:
Scott
Gosselink
Title:
Authorized
Signatory
Signature
Page to Amended and Restated Registration Rights Agreement
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