Form 8-K
8-K — Hyperscale Data, Inc.
Accession: 0001214659-26-007363
Filed: 2026-06-11
Period: 2026-06-11
CIK: 0000896493
SIC: 3533 (OIL & GAS FILED MACHINERY & EQUIPMENT)
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: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — r6112618k.htm (Primary)
EX-5.1 — EXHIBIT 5.1 (ex5_1.htm)
EX-10.1 — EXHIBIT 10.1 (ex10_1.htm)
EX-99.1 — EXHIBIT 99.1 (ex99_1.htm)
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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): June
11, 2026
HYPERSCALE DATA,
INC.
(Exact name of registrant as specified in its charter)
Delaware
001-12711
94-1721931
(State or other jurisdiction of
incorporation or organization)
(Commission File Number)
(I.R.S. Employer Identification No.)
11411 Southern Highlands Parkway, Suite 190,
Las Vegas, NV 89141
(Address of principal executive offices) (Zip Code)
(949) 444-5464
(Registrant's telephone number, including area
code)
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:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o 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
Class A Common Stock, $0.001 par value
GPUS
NYSE American
13.00% Series D Cumulative Redeemable Perpetual Preferred Stock, par value $0.001 per share
GPUS PD
NYSE American
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. o
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On June 11, 2026 (the
“Effective Date”), Hyperscale Data, Inc. (the “Company”) entered into a Pre-Paid Advance Agreement
(the “PPA”) with YA II PN, Ltd., a Cayman Islands exempt limited partnership (“Yorkville”). In accordance
with the terms of the PPA, the Company will receive a pre-paid advance of $15,958,000 from Yorkville (the “Pre-Paid Advance”).
The Pre-Paid Advance will be purchased by Yorkville at 94% of the face amount of the Pre-Paid Advance. The Pre-Paid Advance was purchased
on the Effective Date by Yorkville, for net proceeds of $15,000,520. Interest shall accrue on the outstanding balance of the Pre-Paid
Advance at an annual rate of 4%, subject to an increase to 18% upon events of default described in the PPA.
At any time that there
is an outstanding balance under the Pre-Paid Advances, Yorkville may provide written notice (each, a “Purchase Notice”)
requiring the Company to issue and sell shares of the Company’s Class A common stock (the “PPA Shares”) to Yorkville,
which shall be offset against and reduce the amounts outstanding under the Pre-Paid Advance, at a price per share equal to the lower of
(a) $0.2153 (the “Fixed Price”) and (b) 90% of the lowest daily volume weighted
average price (the “VWAP”) of the Company’s common stock on the NYSE American, LLC during the five (5) consecutive
trading days immediately preceding the date on which Yorkville provides the Purchase Notice to the Company (the “Market Price”),
but in no event shall the Market Price be less than $0.10 per share (the “Floor Price”). Yorkville shall, in each Purchase
Notice, select the number of shares to be issued, in its sole discretion, provided that the aggregate price for such shares may not exceed
the balance outstanding under the Pre-Paid Advance or exceed other specified limits in the PPA. Amounts offset by the issuance of the
PPA Shares shall be applied first toward accrued and unpaid interest, if any, and then toward outstanding principal under the Pre-Paid
Advance.
In the event that (i)
any of the PPA Shares are not eligible to be sold pursuant to an effective registration statement for a period of 10 consecutive trading
days (a “Registration Event”), or (ii) the Company has issued substantially all of the PPA Shares available under the
Exchange Cap (as defined below) (an “Exchange Cap Event,” and the date on which any event described in (i) and (ii)
occurs, the “Amortization Event Date”), then the Company shall make monthly cash payments beginning on the seventh
(7th) Trading Day after the Amortization Event Date and continuing on the same day of each successive Calendar Month until all amounts
outstanding under the Pre-Paid Advance have been repaid in full, where each monthly payment shall consist of (i) the lesser of (a) $2,500,000
(the “Principal Amount”), and (b) the outstanding principal balance on the Pre-Paid Advance as of the Amortization
Event Date (the “Amortization Principal Amount”), plus (ii) ten percent (10%) of the Principal Amount, and (iii) accrued
and unpaid interest hereunder as of each payment date (collectively, the “Monthly Payment”). Such payments will continue
until either all amounts outstanding under the Pre-Paid Advance are paid in full or (i) in the event of a Registration Event, the condition
or event causing the Registration Event is cured, or (ii) in the event of an Exchange Cap Event, the Company obtains stockholder consent
for the Company to issue shares of common stock in excess of the Exchange Cap.
The Company, in its sole
discretion, may prepay the outstanding Pre-Paid Advance, in part or in full (the “Prepayment Amount”), in cash by providing
Yorkville with advance written notice 10 trading days prior to such prepayment if the VWAP of the Company’s common stock is, at
the time of such written notice, lower than the Fixed Price. Any such prepayment shall include a 10% prepayment premium as well as all
the accrued but unpaid interest on such Prepayment Amount.
In connection with entry
into the PPA, the Company paid Yorkville’s structuring and due diligence fees of $35,000.
The PPA Shares will be
issued pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333- 291595). Concurrently with the filing of
this Current Report on Form 8-K, the Company is filing a prospectus supplement with the U.S. Securities and Exchange Commission in connection
with the offer and sale of the PPA Shares.
The foregoing summary
of the PPA is subject to and qualified in its entirety by the text of the PPA, a form of which is filed hereto as Exhibit 10.1.
A copy of the legal opinion
of Olshan Frome Wolosky LLP as to the legality of the PPA Shares is attached as Exhibit 5.1 hereto.
ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF
A REGISTRANT.
The disclosure regarding
the Pre-Paid Advances set forth in Item 1.01 of this Current Report is incorporated by reference herein.
ITEM 7.01 REGULATION FD DISCLOSURE
On
June 11, 2026, the Company issued a press release announcing the PPA. A copy of this press release is furnished herewith as Exhibit
99.1 and is incorporated by reference herein.
In
accordance with General Instruction B.2 of Form 8-K, the information under this item shall not be deemed filed for purposes of Section
18 of the Securities Exchange Act of 1934, as amended, nor shall such information be deemed incorporated by reference in any filing under
the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such a filing. This report will
not be deemed an admission as to the materiality of any information required to be disclosed solely to satisfy the requirements of Regulation
FD.
-2-
The
Securities and Exchange Commission encourages registrants to disclose forward-looking information so that investors can better understand
the future prospects of a registrant and make informed investment decisions. This Current Report on Form 8-K and exhibits may contain
these types of statements, which are “forward-looking statements” within the meaning of the Private Securities Litigation
Reform Act of 1995, and which involve risks, uncertainties and reflect the Registrant’s judgment as of the date of this Current
Report on Form 8-K. Forward-looking statements may relate to, among other things, operating results and are indicated by words or phrases
such as “expects,” “should,” “will,” and similar words or phrases. These statements are subject to
inherent uncertainties and risks that could cause actual results to differ materially from those anticipated at the date of this Current
Report on Form 8-K. Investors are cautioned not to rely unduly on forward-looking statements when evaluating the information presented
within.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits:
Exhibit No.
Description
10.1
Form of Pre-Paid Advance Agreement entered into by and between the registrant and YA II PN, Ltd, on June __, 2026
5.1
Opinion of Counsel.
99.1
Press release regarding the Pre-Paid Advance, issued by the Company on June 11, 2026
101
Pursuant to Rule 406 of Regulation S-T, the cover page is formatted in Inline XBRL (Inline eXtensible Business Reporting Language).
104
Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101).
-3-
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
HYPERSCALE DATA, INC.
Dated: June 11, 2026
/s/ Henry Nisser
Henry Nisser
President and General Counsel
-4-
EX-5.1 — EXHIBIT 5.1
EX-5.1
Filename: ex5_1.htm · Sequence: 2
Exhibit 5.1
June 11, 2026
Hyperscale Data, Inc.
11411 Southern Highlands Parkway, Suite 190
Las Vegas, NV 89141
Ladies and Gentlemen:
We
are acting as counsel to Hyperscale Data, Inc., a Delaware corporation (the “Company”), in connection with the issuance and
sale of up to $15,958,000 of shares (the “Shares”) of the Company’s Class A Common Stock, par value $0.001 per share
(the “Common Stock”), all of which are authorized but heretofore unissued shares to be offered and sold by the Company pursuant
to the Registration Statement on Form S-3 (File No. 333-291595) (the “Registration Statement”), filed by the Company with
the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”),
and declared effective by the Commission on December 11, 2025, and the related base prospectus dated therein (the “Base Prospectus”),
as supplemented by the prospectus supplement dated June 11, 2026, relating to the offer and sale of the Shares (as so supplemented, the
“Prospectus”) pursuant to the Pre-Paid Advance Agreement (the “Agreement”), dated as of June 11, 2026, by and
between the Company and YA II PN, Ltd.
In connection with this opinion
letter, we have examined (i) the Registration Statement, (ii) the Prospectus, (iii) the Certificate of Incorporation of
the Company, as amended to date, (iv) the Second Amended and Restated Bylaws of the Company, as amended to date, (v) certain
resolutions of the board of directors of the Company relating to the issuance, sale and registration of the Shares and (vi) the Agreement.
In addition, we have examined and relied upon such corporate records of the Company, and have made such examination of law, as we have
deemed necessary or appropriate for purposes of the opinions expressed below. As to certain factual matters, unless otherwise indicated,
we have relied, to the extent we have deemed proper, on certificates of certain officers of the Company.
We have assumed for purposes
of rendering the opinions set forth herein, without any verification by us, the genuineness of all signatures, the legal capacity of all
natural persons to execute and deliver documents, the authenticity and completeness of documents submitted to us as originals, the completeness
and conformity with authentic original documents of all documents submitted to us as copies, and that all documents, books and records
made available to us by the Company are accurate and complete.
Based upon, subject to and
limited by the foregoing, we are of the opinion that the Shares have been duly and validly authorized by the Company and, upon issuance,
delivery and payment therefor in the manner contemplated by the Registration Statement and the Prospectus, will be legally issued, fully
paid and nonassessable.
June 11, 2026
Page 2
We are members of the Bar
of the State of New York. We do not express any opinion as to the effect of any laws other than the laws of the State of New York and
the General Corporation Law of the State of Delaware, and the federal laws of the United States of America, as in effect on the date hereof.
This letter speaks only at
and as of its date and is based solely on the facts and circumstances known to us at and as of such date. We assume no obligation to revise
or supplement this letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in fact or law
that may hereafter occur.
We hereby consent to the filing
of this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act with the Commission
as an exhibit to the Current Report on Form 8-K to be filed by the Company in connection with the issuance and sale of the Shares
and to the use of our name in the Prospectus under the caption “Legal Matters.” In giving such consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Olshan Frome Wolosky LLP
OLSHAN FROME WOLOSKY LLP
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: ex10_1.htm · Sequence: 3
Exhibit 10.1
PREPAID ADVANCE AGREEMENT
THIS PREPAID ADVANCE AGREEMENT
(this “Agreement”) dated as of June 11, 2026 is made by and between YA II PN, LTD., a Cayman Islands exempt
limited company (the “Investor”), and HYPERSCALE DATA, INC., a Delaware corporation (the “Company”).
The Investor and the Company may be referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, the parties
desire that, upon the terms and subject to the conditions contained herein, the Investor shall advance to the Company an aggregate amount
of up to $15,958,000, which shall be advanced on or about the date of this Agreement (the “Closing”), and which may
be converted, at the option of the Investor, into shares of the Company’s Class A common stock, par value $0.001 per share (the
“Common Shares”); and
WHEREAS, the Common
Shares are listed for trading on the NYSE American under the symbol “GPUS”; and
WHEREAS, the offer
and sale of the Common Shares issuable hereunder will be registered on the Company’s registration statement on Form S-3 (File No.
333-291595) under Section 5 under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities
Act”).
NOW, THEREFORE,
the parties hereto agree as follows:
Article I. Certain Definitions
Capitalized terms used in this
Agreement shall have the meanings ascribed to such terms in Annex I hereto, and hereby made a part hereof, or as otherwise set
forth in this Agreement.
Article II. Pre-Paid Advance
Section 2.01 Pre-Paid
Advance.
(a) Subject to the satisfaction of the conditions set forth in Annex II attached hereto (the “Advance
Conditions”), the Investor shall advance to the Company the principal amount of $15,958,000 (the “Pre-Paid Advance”)
at the Closing. The Closing shall occur remotely by electronic delivery of executed copies of the documents required to be delivered at
the Closing. The time and date of the Closing shall be 8:00 a.m., New York time, on the first Business Day on which the Advance Conditions
are satisfied or waived in writing (or such other date as is mutually agreed to by the Company and the Investor) (the “Closing
Date”).
(b) At the Closing, the Investor shall advance to the Company the principal amount of
the Pre-Paid Advance less a purchase discount in the amount equal to six percent (6%) of the principal amount of such Pre-Paid Advance
netted from the amount of the Pre-Paid Advance, in immediately available funds to an account designated by the Company in writing.
Section 2.02 Company’s
Pre-Paid Advance Obligations.
(a) Certain Definitions. For the purposes of this Agreement, the following terms shall have the meanings
set forth below.
(i) “Amortization
Event” shall mean at any time after the date hereof, (a) the Company has issued substantially all of the shares available under
the Exchange Cap (an “Exchange Cap Event”), or (b) a Material Adverse Event (as defined in Section 7.09) has occurred
and as a result of such Material Outside Event, the Investor is unable to sell the Advance Shares issued or issuable hereunder for a period
of ten (10) consecutive Trading Days (a “Registration Event”) (the first day of any such occurrence, an “Amortization
Event Date”).
(ii) “Amortization
Principal Amount” shall mean the lesser of (a) $2,500,000, and (b) the outstanding principal balance on the Pre-Paid
Advance as of the Amortization Event Date.
(iii) “Calendar
Month” means one of the 12 months named in the calendar.
(iv) “Floor
Price” shall mean a price per share equal to $0.10. In the event that the Company effects a consolidation of the Class A Common
Stock any time after the date hereof, the Floor Price shall not be proportionally increased by the consolidation factor, except to the
extent that the Floor Price following any such consolidation would be less than 20% of the NYSE Minimum Price (as adjusted for such consolidation)
in which case the Floor Price following such consolidation shall equal the NYSE Minimum Price multiplied by the consolidation factor.
By way of example, if the Company effectuates a reverse stock split of its Class A Common Stock affecting the issued and outstanding number
of such shares by a ratio of one-for-three, then the Floor Price would be $0.1033, which is 20% of the NYSE Minimum Price (as adjusted
for such consolidation) ($0.1721 * 20% * 3 = $.1033).
(v) “NYSE
Minimum Price” shall mean the lower of: (i) the Official Closing Price immediately preceding to the signing of this Agreement
of $0.1721; or (ii) the average Official Closing Price for the five Trading Days immediately preceding the signing of this Agreement of
$0.1736, resulting in a NYSE Minimum Price of $0.1721.
(vi) “Payment
Premium” shall mean ten percent (10%).
(b) Interest. Interest shall accrue on the outstanding balance of the Pre-Paid Advance at an annual
rate of 4%, provided however, for so long as any Event of Default has occurred and remains uncured, interest shall accrue on the outstanding
balance of any Pre-Paid Advance at an annual rate of 18%. Interest shall be calculated on the basis of a 365-day year and the actual number
of days elapsed.
- 2 -
(c) Maturity. The Company shall pay to the Investor an amount in cash representing any amount of the
Pre-Paid Advance that remains outstanding, plus any accrued and unpaid interest thereon, on the date that is 18 months from the date of
the Closing, unless otherwise agreed by the parties (the “Maturity Date”).
(d) Amortization Payments. If, any time after the date hereof, and from time to time thereafter, an
Amortization Event has occurred, then the Company shall make monthly cash payments beginning on the seventh (7th) Trading Day
after the Amortization Event Date and continuing on the same day of each successive Calendar Month until all amounts due under the then-outstanding
Pre-Paid Advance have been repaid in full. Each monthly payment shall
be in an amount equal to the sum of (i) Amortization Principal Amount, plus (ii) the Payment Premium in respect of such Amortization
Principal Amount, and (iii) accrued and unpaid interest hereunder as of each payment date. The obligation of the Company to make
monthly prepayments related to a Amortization Event shall cease (with respect to any payment that has not yet come due) if at any time
after the Amortization Event Date (A) in the event of an Exchange Cap Event, the Company obtains the Exchange Cap Stockholder Consent,
or (B) in the event of a Registration Event, the condition or event causing the Registration Event is cured, unless a subsequent Amortization
Event occurs. Any reductions to the outstanding balance of the Pre-Paid Advance
made pursuant to Purchase Notices delivered after the occurrence of an Amortization Event shall have the effect of reducing the
amount of the next payment coming due as a result of such Amortization Event by an amount equal to the amount of the Pre-Paid
Advance that is offset in respect of such Purchase Notice.
(e) Right of Prepayment.
(i) Optional Prepayment. At any time and from time to time while any portion of the Pre-Paid
Advance is outstanding, the Company at its option shall have the right, but not the obligation, to repay (“Optional Prepayment”)
early a portion or all amounts outstanding under the Pre-Paid Advance in
cash as described in this Section; provided that the Company provides the Investor with written notice (each, a “Prepayment
Notice”) of its desire to exercise an Optional Prepayment, which Prepayment Notice (i) shall be delivered to the Investor after
the close of regular trading hours on a Trading Day, and (ii) may only be given if the VWAP of the Common Shares was less than the Fixed
Price on the date such Prepayment Notice is delivered, unless otherwise agreed by the Investor. Each Prepayment Notice shall be irrevocable
and shall specify the outstanding balance of the Pre-Paid Advance to be
repaid and the Prepayment Amount. The “Prepayment Amount” shall be an amount equal to (a) the outstanding principal
balance being repaid by the Company, plus (b) the Payment Premium in respect of such principal amount, plus (c) all accrued
and unpaid interest on such principal amount. After receipt of a Prepayment Notice, the Investor shall have ten (10) Trading Days (beginning
with the Trading Day immediately following the date of such Prepayment Notice) to elect to deliver Purchase Notices to the Company in
respect of any portion of the Pre-Paid Advance outstanding in accordance
with this Agreement. On the eleventh (11th) Trading Day after the applicable Prepayment Notice, the Company shall deliver to
the Investor the Prepayment Amount with respect to the principal amount prepaid after giving effect to Purchase Notices delivered during
the applicable ten (10) Trading Day period.
- 3 -
(ii) Mandatory Prepayment. If the Company is required to make a payment in cash in accordance with Section
7.19(c)(B)(ii), then the Company shall provide the Investor with notice of such event, and unless waived by the Investor, the Company
shall promptly make the required payment in cash which shall be applied towards accrued and unpaid interest hereunder, Principal, and
the Payment Premium in respect of such Principal amount.
(f) Events of Default. An “Event of Default,” wherever used herein, means any one
of the following events (whatever the reason and whether it shall be voluntary or involuntary or effected by operation of law or pursuant
to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body) shall have
occurred:
(i) the Company’s failure to pay to the Investor any amount of the Pre-Paid
Advance or other amounts when and as due and payable hereunder, subject to a cure period of five (5) Business Days;
(ii) The Company or any Significant Subsidiary of the Company shall commence, or there shall be commenced against
the Company or any Significant Subsidiary of the Company, any proceeding under any applicable bankruptcy or insolvency laws as now or
hereafter in effect or any successor thereto, or the Company or any Significant Subsidiary of the Company commences any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of
any jurisdiction whether now or hereafter in effect relating to the Company or any Significant Subsidiary of the Company any such bankruptcy,
insolvency or other proceeding which remains undismissed for a period of sixty one (61) days; or the Company or any Significant Subsidiary
of the Company is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered;
or the Company or any Significant Subsidiary of the Company suffers any appointment of any custodian, private or court appointed receiver
or the like for it or all or substantially all of its property which continues undischarged or unstayed for a period of sixty one (61)
days; or the Company or any Significant Subsidiary of the Company makes a general assignment of all or substantially all of its assets
for the benefit of creditors; or the Company or any Significant Subsidiary of the Company shall fail to pay, or shall state that it is
unable to pay, or shall be unable to pay, its debts generally as they become due; or the Company or any Significant Subsidiary of the
Company shall call a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts; or the
Company or any Significant Subsidiary of the Company shall by any act or failure to act expressly indicate its consent to, approval of
or acquiescence in any of the foregoing; or any corporate or other action is taken by the Company or any Significant Subsidiary of the
Company for the purpose of effecting any of the foregoing;
- 4 -
(iii) the Company is party to any agreement memorializing (1) an acquisition after the date hereof by an individual
or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether
through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of fifty percent (50%) of
the voting securities of the Company (except that the acquisition of voting securities by the Investor shall not constitute a Change in
Control for purposes hereof), (2) any transaction or event (whether by means of (I) a share exchange or tender offer applicable to the
Common Shares, (II) a liquidation, consolidation, recapitalization, reclassification, combination or merger of the Company or (III) a
sale, lease or other transfer of all or substantially all of the consolidated assets of the Company) or a series of related transactions
or related events pursuant to which all or a portion of the outstanding Common Shares of the Company are exchanged for, converted into
or constitute solely the right to receive cash, securities or other property, and after giving effect to such transaction or event, the
Persons who held such Common Shares immediately prior to such transaction or event cease to hold a majority of the voting power of the
acquirer or successor immediately following such transaction or event, (3) a consolidation or merger in which the Company is not the surviving
entity and, after giving effect to such consolidation or merger, the Persons who held such Common Shares immediately prior to such consolidation
or merger cease to hold a majority of the voting power of the acquirer or successor immediately following such consolidation or merger,
(4) a sale, assignment, transfer, conveyance or other disposal of all or substantially all of the properties and/or other assets of the
Company and its Subsidiaries on a consolidated basis, to another Person or entity, (5) a replacement at one time or over time of more
than one-half of the members of the board of directors of the Company (other than as due to the retirement, death or disability of a member
of the board of directors) which is not approved by a majority of those individuals who are members of the board of directors on the date
hereof (or by those individuals who are serving as members of the board of directors on any date whose nomination to the board of directors
was approved by a majority of the members of the board of directors who are members on the date hereof), or (6) the execution by the Company
of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth above in subclauses
(1) through (5), unless, in connection with the occurrence of any of the events, transactions or other actions described in the foregoing
subclauses (1) through (6), all amounts due under this Agreement are paid in full or the Investor consents to such Change in Control (each
of (1), (2), (3), (4), (5) or (6), a “Change in Control”) unless in connection with such Change in Control, the outstanding
balance of the Pre-Paid Advance hereunder, and any other amounts owed
in connection herewith, are paid in full or the Investor consents to such Change in Control;
(iv) the Company's (A) failure to deliver the required number of Common Shares to the Investor (I) before the
applicable Share Delivery Date, or (II) in the instance of a delay due to extenuating circumstances not attributable to the Company, no
later than the end of the second Business Day immediately following the Share Delivery Date, or (B) notice, written or oral, to the Investor,
including by way of public announcement, at any time, of its intention not to comply with a Purchase Notice;
- 5 -
(v) the Company shall fail for any reason to deliver the payment in cash pursuant to a Buy-In (as defined
herein) within five (5) Business Days after the date that it was informed that such payment is due;
(vi) the Company or any Significant Subsidiary of the Company shall default in any of its obligations under
any note, debenture, or any mortgage, credit agreement or other facility, indenture agreement, factoring agreement or other instrument
under which there may be issued, or by which there may be secured or evidenced any indebtedness for borrowed money or money due under
any long term leasing or factoring arrangement of the Company or any Significant Subsidiary of the Company in an amount exceeding $500,000,
whether such indebtedness now exists or shall hereafter be created and such default shall result in such indebtedness becoming or being
declared due and payable and such default is not thereafter cured within five (5) Business Days;
(vii) the Company’s failure to timely file with the SEC any Periodic Report on or before the due date
of such filing as established by the SEC, it being understood, for the avoidance of doubt, that due date includes any permitted filing
deadline extension under Rule 12b-25 under the Exchange Act.
(viii) the Common Shares shall be suspended or shall cease to be quoted or listed for trading, as applicable,
on any Principal Market for a period of five (5) consecutive Trading Days;
(ix) a final, non-appealable judgment, which in the aggregate with other outstanding final judgments, exceeds
$500,000 shall be rendered against the Company and or a Significant Subsidiary which judgments are not, within thirty (30) days after
the entry thereof, bonded, discharged, settled or stayed pending appeal, or are not discharged within thirty (30) days after the expiration
of such stay; provided, however, any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included
in calculating the $500,000 amount set forth above so long as the Company provides the Investor a written statement from such insurer
or indemnity provider to the effect that such judgment is covered by insurance or an indemnity and the Company or such Significant Subsidiary
(as the case may be) will receive the proceeds of such insurance or indemnity within thirty (30) days of the issuance of such judgment;
(x) Any representation or warranty made or deemed to be made by or on behalf of the Company in or in connection
with any Transaction Document, or any waiver hereunder or thereunder, shall prove to have been incorrect in any material respect (or,
in the case of any such representation or warranty already qualified by materiality, such representation or warranty shall prove to have
been incorrect) when made or deemed made;
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(xi) The Company shall fail to observe or perform any material covenant, agreement or warranty contained in,
or otherwise commit any material breach or default of any provision of this Agreement (except as is otherwise covered by Section 2.02(f)(i)
through Section 2.02(f)(x) hereof) or any other Transaction Document) which is not cured or remedied within the time prescribed or if
no time is prescribed within ten (10) Business Days.
During the time that
any portion of the Pre-Paid Advance is outstanding, if any Event of Default
has occurred, the full amount outstanding under the Pre-Paid Advance,
together with the Payment Premium in respect of such amount and all interest and other amounts owing in respect of the Pre-Paid Advance
to the date of acceleration shall become, at the Investor's election given by notice, immediately due and payable in cash; provided that,
in the case of any event with respect to the Company described in Section 2.02(f)(ii), the full unpaid amount outstanding under
the Pre-Paid Advance, together with the Payment Premium in respect of such amount and all accrued and unpaid interest and other amounts
owing in respect of the Pre-Paid Advance to the date of acceleration shall automatically become due and payable, in each case without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company. Furthermore, in addition to any
other remedies, the Investor shall have the right (but not the obligation) to submit Purchase Notices (and Advances hereunder) (subject
to the limitations set out in Section 3.01(b)) at any time after (x) an Event of Default has occurred and is continuing or (y) the Maturity
Date, until all amounts outstanding under the Pre-Paid Advance have been repaid in full. The Investor need not provide, and the Company
hereby waives, any presentment, demand, protest or other notice of any kind (other than required notice of purchase) and the Investor
may immediately enforce any and all of its rights and remedies hereunder and all other remedies available to it under Applicable Law.
Such declaration may be rescinded and annulled by the Investor at any time prior to payment hereunder. No such rescission or annulment
shall affect any subsequent Event of Default or impair any right consequent thereon.
Article III. Advances
Section 3.01 Advances;
Mechanics. Upon the terms and subject to the conditions of this Agreement, the Investor, at its sole discretion, shall have the right,
but not the obligation, to purchase from the Company, and the Company shall issue and sell to the Investor, Common Shares by the delivery
to the Company of Purchase Notices as provided herein:
(a) Purchase Notice. At any time that there is an outstanding balance under the Pre-Paid Advance, the
Investor may, by providing written notice to the Company in the form set forth herein as Exhibit A attached hereto (a “Purchase
Notice”), require the Company to issue and sell Common Shares to the Investor, in accordance with the following provisions:
(i) The Investor shall, in each Purchase Notice, select the amount of the Advance, in its sole discretion,
and the timing of delivery; provided that the amount of the Advance shall not exceed the balance outstanding under the Pre-Paid
Advance on the date of delivery of the Purchase Notice, or result in the Investor exceeding the Advance Limitations set forth in Section
3.01(b).
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(ii) Each Purchase Notice shall be delivered in accordance with the instructions set forth at the bottom of
Exhibit A.
(iii) Each Purchase Notice shall set forth the amount of the Advance requested, the number of Common Shares
to be issued by the Company and purchased by the Investor, the Market Price (along with a report by Bloomberg, L.P. indicating the relevant
VWAP used in calculating the Market Price), the Purchase Price, the aggregate amount of accrued and unpaid interest of the Pre-Paid Advance
(if any) as of the Purchase Notice Date that shall be offset by the issuance of Common Shares, the aggregate amount of principal of the
Pre-Paid Advance as of the Purchase Notice Date that shall be offset by the issuance of Common Shares, and the total amount of the Pre-Paid
Advance that shall be outstanding following the closing of the Advance.
(b) Advance Limitations.
(i) Ownership Limitation. In no event shall the number of Common Shares issuable to the Investor pursuant
to an Advance cause the aggregate number of Common Shares beneficially owned (as calculated pursuant to Section 13(d) of the Exchange
Act and Rule 13d-3 promulgated thereunder) by the Investor and its affiliates (on an aggregated basis) to exceed 4.99% of the then-outstanding
voting power or number of Common Shares (the “Ownership Limitation”). Upon the written request of the Investor, the
Company shall promptly (but no later than the next Business Day on which the transfer agent for the Common Shares is open for business)
confirm orally or in writing to the Investor the number of Common Shares then-outstanding, and, upon the written request of the Company,
the Investor will inform the Company of the amount of Common Shares the Investor and its affiliates beneficially own as of the date of
such request.
(ii) Principal Market Limitation. Notwithstanding anything to the contrary herein, the Company shall
not effect any sales under this Agreement and the Investor shall not have the obligation to purchase Common Shares under this Agreement
to the extent (but only to the extent) that after giving effect to such purchase and sale the aggregate number of Common Shares issued
under this Agreement would exceed in the aggregate 87,495,229 Common Shares (representing 19.99% of the aggregate number of Common Shares
issued and outstanding as of the Closing (subject to adjustment for any stock splits, combinations or the like)), calculated in accordance
with the rules of the Principal Market, which number shall be reduced, on a share-for-share basis, by the number of Common Shares issued
or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement
under the applicable rules of the Principal Market (such maximum number of shares, the “Exchange Cap”), provided
that, the Exchange Cap will not apply if the Company’s stockholders have approved the issuance of Common Shares pursuant to
this Agreement in excess of the Exchange Cap in accordance with the rules of the Principal Market (such approval, the “Exchange
Cap Stockholder Consent”).
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In the event that an Exchange Cap Event
occurs, unless the Company confirms in writing to the Investor that is has the resources to timely satisfy all required monthly cash amortization
payments as required pursuant to Section 2.02(d), and provides support to the satisfaction of the Investor acting reasonably, the Company
shall use its reasonable best efforts to hold a special meeting of stockholders providing for the approval of, and obtain the approval
of the Exchange Cap Stockholder Consent within 75 calendar days of the date of the Exchange Cap Event, with the recommendation of the
Company’s Board of Directors that such proposals be approved. The Company shall include the Exchange Cap Stockholder Consent in
the Proxy Statement and shall use commercially reasonable efforts to solicit proxies from its stockholders in connection therewith in
the same manner as all other management proposals in the Proxy Statement, including the Exchange Cap Stockholder Consent, and all management-appointed
proxyholders shall vote their proxies in favor of such proposal.
(c) Company’s Obligations to Deliver Common Shares to Investor. On or before the first (1st)
Business Day following the date of receipt of a Purchase Notice (the “Share Delivery Date”), the Company shall (X)
provided that the Transfer Agent is participating in The Depository Trust Company's (“DTC”) Fast Automated Securities
Transfer Program, credit such aggregate number of Common Shares to which the Investor shall be entitled to the Investor's or its designee's
balance account with DTC through its Deposit/Withdrawal at Custodian (DWAC) system or (Y) if the Transfer Agent is not participating in
the DTC Fast Automated Securities Transfer Program, issue and deliver to the address as specified in the Purchase Notice, a certificate,
registered in the name of the Investor or its designee, for the number of Common Shares to which the Investor shall be entitled which
certificates shall not bear any restrictive legends unless required pursuant to rules and regulations of the SEC. The aggregate Purchase
Price of the Common Shares issued shall be paid by offsetting an equal amount outstanding under the Pre-Paid Advance (first towards accrued
and unpaid interest, if any, and then towards outstanding principal as shown in such Purchase Notice). No fractional shares shall be issued,
and any fractional amounts shall be rounded down to the nearest whole number of shares. The Person or Persons entitled to receive the
Common Shares issuable hereunder shall be treated for all purposes as the record Investor or holders of such Common Shares upon the transmission
of a Purchase Notice.
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(d) Company's Failure to Timely Delivery Shares. If the Company shall fail, for any reason or for no
reason, on or prior to the applicable Share Delivery Date to issue and deliver a certificate to the Investor or credit the Investor’s
balance account with DTC for the number of Common Shares to which the Investor is entitled upon delivery of a Purchase Notice, and if
on or after such Trading Day the Investor purchases (in an open market transaction or otherwise) Common Shares to deliver in satisfaction
of a sale by the Investor of Common Shares issuable upon such Purchase Notice that the Investor anticipated receiving from the Company
(a “Buy-In”), then the Company shall, within three (3) Business Days after the Investor’s request and in the
Investor’s discretion, either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including
brokerage commissions and other out of pocket expenses, if any) for the Common Shares so purchased (the “Buy-In Price”),
at which point the Company's obligation to deliver such certificate (and to issue such Common Shares) shall terminate, or (ii) promptly
honor its obligation to deliver to the Investor a certificate or certificates representing such Common Shares and pay cash to the Investor
in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of Common Shares, times (B) the closing
price on the Purchase Notice Date.
(e) Book-Entry. The Investor and the Company shall maintain records showing the outstanding balance
of the Pre-Paid Advance (as well as the number of Common Shares issued pursuant to Purchase Notices).
(f) Each of the Company and the Investor shall deliver to the other all documents, instruments and writings
expressly required to be delivered by either of them pursuant to this Agreement in order to implement and effect the transactions contemplated
herein.
(g) Notwithstanding any other provision in this Agreement, the Company and the Investor acknowledge and agree
that upon the Investor’s delivery of a valid Purchase Notice the parties shall be deemed to have entered into an unconditional contract
binding on both parties for the purchase and sale of the Common Shares pursuant to such Purchase Notice in accordance with the terms of
this Agreement and (i) subject to Applicable Laws and (ii) subject to Section 7.17 (Selling Restrictions), the Investor may sell
such Common Shares.
Section 3.02 Hardship.
In the event the Investor sells Common Shares of the Company after delivery of a Purchase Notice and the Company fails to perform its
obligations as mandated in Section 3.01(c), the Company agrees that in addition to and in no way limiting the rights and obligations set
forth in Article VI hereto and in addition to any other remedy to which the Investor is entitled at law or in equity, including, without
limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage, or expense (including reasonable
legal fees and expenses), arising out of or in connection with such default by the Company and acknowledges that irreparable damage may
occur in the event of any such default. It is accordingly agreed that the Investor shall be entitled to an injunction or injunctions to
prevent such breaches of this Agreement and to specifically enforce (subject to the Securities Act and other rules of the Principal Market),
without the posting of a bond or other security, the terms and provisions of this Agreement.
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Article IV. Representations
and Warranties of the Investor
The Investor hereby makes
the following representations, warranties and covenants to the Company:
Section 4.01 Organization
and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the Cayman Islands and
has the requisite corporate power and authority to enter into and perform its obligations under the Transaction Documents to which it
is a party and to purchase or acquire the Common Shares in accordance with the terms hereof. The decision to invest and the execution
and delivery of the Transaction Documents to which it is a party by the Investor, the performance by the Investor of its obligations hereunder
and the consummation by the Investor of the transactions contemplated hereby have been duly authorized and require no other proceedings
on the part of the Investor. The undersigned has the right, power and authority to execute and deliver the Transaction Documents to which
it is a party and all other instruments on behalf of the Investor or its stockholders. This Agreement and the Transaction Documents to
which it is a party have been duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance
thereof by the Company, will constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in
accordance with its terms.
Section 4.02 Evaluation
of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable of evaluating the
merits and risks of, and bearing the economic risks entailed by, an investment in the Common Shares of the Company and of protecting its
interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the Company
involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 4.03 No Legal,
Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review the Transaction Documents
and the transactions contemplated by the Transaction Documents with its own legal counsel and investment and tax advisors. The Investor
is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of the Company’s
representatives or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition of Common Shares
hereunder, the transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges that the Investor
may lose all or a part of its investment.
Section 4.04 Investment
Purpose. The Investor is acquiring the Common Shares for its own account, for investment purposes and not with a view towards, or
for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the registration
requirements of the Securities Act or any applicable state securities laws; provided, however, that by making the representations
herein, the Investor does not agree, or make any representation or warranty, to hold any Common Shares for any minimum or other specific
term and reserves the right to dispose of Common Shares at any time in accordance with, or pursuant to, a Registration Statement filed
pursuant to this Agreement or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or
understanding, directly or indirectly, with any Person to sell or distribute any of Common Shares. The Investor is acquiring the Common
Shares hereunder in the ordinary course of its business.
Section 4.05 Accredited
Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation D.
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Section 4.06 Information.
The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and
operations of the Company and other information the Investor deemed material to making an informed investment decision. The Investor and
its advisors (including its legal counsel), if any, have been afforded the opportunity to ask questions of the Company and its management
and have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor
or its advisors (including its legal counsel), if any, or its representatives shall modify, amend or affect the Investor’s right
to rely on the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the
Company has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties
of the Company, its employees or any third party other than the representations and warranties of the Company contained in this Agreement.
The Investor understands that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice
as it has considered necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 4.07 Not an Affiliate.
The Investor is not an officer, director or a Person that directly, or indirectly through one or more intermediaries, controls or is controlled
by, or is under common control with the Company or any affiliate of the Company (as that term is defined in Rule 405 promulgated under
the Securities Act).
Section 4.08 General Solicitation.
Neither the Investor, nor any of its affiliates, nor any Person acting on its or their behalf, has engaged or will engage in any form
of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Common
Shares by the Investor. Further, the Investor is not acquiring the Common Shares as a result of any advertisement, article, notice or
other communication regarding the Common Shares published in any newspaper, magazine or similar media or broadcast over television or
radio or presented at any seminar or any other general solicitation or general advertisement.
Section 4.09 No Prior
Short Sales. The Investor has not, directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding
with the Investor, engaged in any transactions in the securities of the Company (including, without limitation, any “short sale”
(as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) involving the Company's securities) during the period commencing
as of the time that the Investor first contacted the Company or the Company's agents regarding the specific investment in the Company
contemplated by this Agreement and ending immediately prior to the execution of this Agreement by the Investor.
Article V. Representations
and Warranties of the Company
Except as set forth in the
SEC Documents or in the correspondingly numbered section of the Disclosure Schedules that relates to such section, the Company represents
and warrants to the Investor that, as of the date hereof and each Purchase Notice Date (other than representations and warranties which
address matters only as of a certain date, which shall be true and correct as written as of such certain date), that:
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Section 5.01 Organization
and Qualification. The Company and each of its Subsidiaries are entities duly formed, validly existing and in good standing under
the laws of the jurisdiction in which they are formed and have the requisite power and authority to own their properties and carry on
their business as now being conducted, except to the extent that the failure of any of the foregoing would not be reasonably expected
to have a Material Adverse Effect. The Company and each of its Subsidiaries is duly qualified to do business and is in good standing in
every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not be reasonably expected to have a Material Adverse Effect.
Section 5.02 Authorization,
Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and the other Transaction Documents to which it is a party and to issue the Common Shares in accordance
with the terms hereof and thereof, subject to the Exchange Cap. The execution and delivery by the Company of this Agreement and the other
Transaction Documents to which it is a party, and the consummation by the Company of the transactions contemplated hereby and thereby
(including, without limitation, the issuance of the Common Shares) have been or (with respect to consummation) will be duly authorized
by the Company’s board of directors and no further consent or authorization will be required by the Company, its board of directors
or, subject to the Exchange Cap (unless or until the Company shall have received the Principal Market Approval), by its stockholders.
This Agreement and the other Transaction Documents to which the Company is a party have been (or, when executed and delivered, will be)
duly executed and delivered by the Company and, assuming the execution and delivery thereof and acceptance by the Investor, constitute
(or, when duly executed and delivered, will be) the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except (i) as such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies and (ii) as rights to indemnification and to contribution may be limited by federal or
state securities law.
Section 5.03 Authorization
of the Common Shares. The Common Shares to be purchased by the Investor pursuant to a Purchase Notice, will be, when issued and delivered
pursuant to the terms approved by the board of directors of the Company or a duly authorized committee thereof, or a duly authorized executive
committee, against payment therefor as provided herein, duly and validly authorized and issued and fully paid and nonassessable, free
and clear of any pledge, lien, encumbrance, security interest or other claim, including any statutory or contractual preemptive rights,
resale rights, rights of first refusal or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The
Common Shares, when issued, will conform to the description thereof set forth in or incorporated into the Prospectus.
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Section 5.04 No Conflict.
The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) will not (i) result in a violation
of the certificate of incorporation or other organizational documents of the Company or its Subsidiaries (with respect to consummation,
as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated), (ii) conflict with,
or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights
of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or its Subsidiaries
is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or its Subsidiaries or by which any property or asset of the Company or its Subsidiaries
is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that would not be reasonably expected
to have a Material Adverse Effect.
Section 5.05 Issue of
Common Shares. The Company understands and acknowledges that the number of Common Shares issuable to the Investor hereunder will increase
in certain circumstances. The Company further acknowledges its obligation to issue the Common Shares in accordance with the terms herein
is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders
of the Company.
Section 5.06 SEC Documents.
For the past two years the Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the
Exchange Act) all SEC Documents. The Company has delivered or made available to the Investor through the SEC’s website at http://www.sec.gov,
true and complete copies of the SEC Documents, as applicable. Except as disclosed in amendments or subsequent filings to the SEC Documents,
as of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such amended or superseded filing),
each of the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable,
and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
Section 5.07 Financial
Statements. The consolidated financial statements of the Company included or incorporated by reference in the SEC Documents, together
with the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and
the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity
of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange
Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in the case of unaudited interim
financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be condensed or summary
statements and (iii) such adjustments which are not material, either individually or in the aggregate) during the periods involved; the
other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the SEC
Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of
the Company; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference
in the SEC Documents that are not included or incorporated by reference as required; the Company and the Subsidiaries do not have any
material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the SEC Documents
(excluding the exhibits thereto); and all disclosures contained or incorporated by reference in the SEC Documents regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the SEC) comply in all material respects with Regulation
G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible
Business Reporting Language included or incorporated by reference in the SEC Documents fairly presents the information called for in all
material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto.
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Section 5.08 Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the conditions for the use of Form S-3 under the Securities Act. The Registration Statement meets, and each offer and sale of Common Shares
as contemplated hereby will meet, the requirements of Rule 415 under the Securities Act and comply in all material respects with
said rule. Any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or
a Prospectus, or to be filed as exhibits to a Registration Statement have been so described or filed. Copies of each Registration Statement,
any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were filed with
the SEC on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor and its counsel.
Section 5.09 No Misstatement
or Omission. The Registration Statement, when it became effective, and each of the Prospectus and the Prospectus Supplement, on the
date of such Prospectus or Prospectus Supplement or amendment or any supplement thereto, conformed and will conform in all material respects
with the requirements of the Securities Act. At each Purchase Notice Date, the Registration Statement and the Prospectus, as of such date,
will conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became, did not
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 not misleading. Each Prospectus, as amended or supplemented, as of its date and at all subsequent times, did not, or
will not, include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The documents incorporated by reference in a Prospectus or any
Prospectus Supplement did not, and any further documents filed and incorporated by reference therein will not, when filed with the SEC,
contain an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary to
make the statements in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not
apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the
Company by the Investor specifically for use in the preparation thereof.
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Section 5.10 Conformity
with Securities Act and Exchange Act. Each Registration Statement, each Prospectus, or any amendment or supplement thereto, and the
documents incorporated by reference in each Registration Statement, Prospectus or any amendment or supplement thereto, when such documents
were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as
the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable.
Section 5.11 Equity Capitalization.
(a) As of the date hereof, the authorized capital of the Company consists of 2,500,000,000 shares of Class
A Common Stock, $0.001 par value, 25,000,000 shares of Class B Common Stock, $0.001 par value, and 25,000,000 shares of Preferred Stock,
par value $0.001 per share. As of the date hereof, the Company has 437,694,990 shares of Class A Common Stock outstanding, 23,912,012
shares of Class B Common Stock outstanding, and 2,323,531 shares of Preferred Stock outstanding.
(b) Valid Issuance; Available Shares. All of the Company’s issued and outstanding shares
are duly authorized and have been validly issued and are fully paid and nonassessable.
(c) Existing Securities; Obligations. Except as disclosed in the SEC Documents or on Schedule
5.11: (A) none of the Company’s nor any Subsidiary’s shares, interests or capital stock is subject to preemptive rights
or any other similar rights or liens suffered or permitted by the Company or any Subsidiary; (B) there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible
into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional
shares, interests or capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for,
any shares, interests or capital stock of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements under
which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except
pursuant to this Agreement); (D) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; and (E) there are
no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Common Shares.
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Section 5.12 Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted, except
as would not be reasonably expected to have a Material Adverse Effect. The Company and its Subsidiaries have not received written notice
of any infringement by the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions,
licenses, service names, service marks, service mark registrations, or trade secrets, except as would not be reasonably expected to have
a Material Adverse Effect. There is no claim, action or proceeding being made, brought or, to the Company’s knowledge, threatened
against the Company or any of its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license,
service names, service marks, service mark registrations, trade secret or other infringement; and, except as would not be reasonably expected
to have a Material Adverse Effect, the Company is not aware of any facts or circumstances which might give rise to any of the foregoing.
Section 5.13 Employee
Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge of the Company or
any of its Subsidiaries, is any such dispute threatened, in each case which would be reasonably likely to have a Material Adverse Effect.
Section 5.14 Environmental
Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure to comply in all material respects
with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not received written notice alleging any failure to comply with
all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and (iii), the failure
to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental
Laws” means all applicable federal, state and local laws relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation,
laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous
substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations,
codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations
issued, entered, promulgated or approved thereunder.
Section 5.15 Title.
Except as would not be reasonably expected to have a Material Adverse Effect, the Company (or its Subsidiaries) has indefeasible fee simple
or leasehold title to its properties and material assets owned by it, free and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest other than such as are not material to the business of the Company. Any real property and facilities held
under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its
Subsidiaries.
Section 5.16 Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries
are engaged. The Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not be reasonably
expected to have a Material Adverse Effect.
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Section 5.17 Regulatory
Permits. Except as would not be reasonably expected to have a Material Adverse Effect, the Company and its Subsidiaries possess all
material certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary
to own their respective businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating
to the revocation or modification of any such certificate, authorization or permits.
Section 5.18 Internal
Accounting Controls. Other than as set forth in the SEC Documents, the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences, and management is not aware of any material weaknesses that are not disclosed in the SEC Documents
as and when required.
Section 5.19 Absence of
Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency,
self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of the Company’s Subsidiaries,
wherein an unfavorable decision, ruling or finding would be reasonably expected to have a Material Adverse Effect.
Section 5.20 Absence of
Certain Changes. Since the date of the Company’s most recent audited financial statements contained in its Form 10-K, there
has been no Material Adverse Effect, nor any event or occurrence specifically affecting the Company or its Subsidiaries that would be
reasonably expected to have in a Material Adverse Effect. Since the date of the Company’s most recent audited financial statements
contained in its Form 10-K, neither the Company nor any of its Subsidiaries has (i) other than as set forth in the SEC Documents, declared
or paid any dividends, (ii) sold any material assets, individually or in the aggregate, outside of the ordinary course of business, or
(iii) made any material capital expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the
Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency,
reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe
that any of their respective creditors intend to initiate involuntary bankruptcy proceedings.
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Section 5.21 Tax Status.
Each of the Company and its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested
in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to
the periods to which such returns, reports or declarations apply. The Company has not received written notification of any unpaid taxes
in any material amount claimed to be due by the taxing authority of any jurisdiction, and the Company and its Subsidiaries know of no
basis for any such claim where failure to pay would be reasonably expected to have a Material Adverse Effect.
Section 5.22 Certain Transactions.
None of the officers or directors of the Company is presently a party to any transaction with the Company (other than for services as
employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer or director,
or to the knowledge of the Company, any corporation, partnership, trust or other entity in which any employee, officer or director has
a substantial interest or is an officer, director, trustee or partner.
Section 5.23 Right of
First Refusal. Except as set forth in the Disclosure Schedule, the Company is not obligated to offer the Common Shares offered hereunder
on a right of first refusal or right of participation basis to any third parties in any manner that would reasonably be expected to result
in a Material Adverse Effect, including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents
or other third parties.
Section 5.24 Dilution.
The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing stockholders and could
significantly increase the outstanding number of Common Shares.
Section 5.25 Acknowledgment
Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting solely in the capacity
of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement
and the transactions contemplated hereunder and any advice given by the Investor or any of its representatives or agents in connection
with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s purchase of the Common Shares
hereunder. The Company acknowledges and agrees that it is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement and the other Transaction Documents.
Section 5.26 Finder’s
Fees. Neither the Company nor any of its Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions contemplated in the Transaction Documents.
Section 5.27 Relationship
of the Parties. Neither the Company nor any of its Subsidiaries or affiliates, nor any Person acting on its or their behalf, is a
client or customer of the Investor or any of its affiliates, and neither the Investor nor any of its affiliates has provided, or will
provide, any services to the Company or any of its affiliates, Subsidiaries, or any Person acting on its or their behalf. The Investor’s
relationship to Company is solely as an investor as provided for in the Transaction Documents.
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Section 5.28 Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement or a Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
Section 5.29 Compliance
with Laws. (i) The Company and each of its Subsidiaries are and have since January 1, 2025, been in compliance with Applicable Laws;
(ii) other than as referenced in the SEC Documents, no action, suit or proceeding by or before any governmental authority involving the
Company or any of its Subsidiaries with respect to Applicable Laws is pending or, to the knowledge of the Company, threatened, (iii) the
Company has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that (A) any director,
officer, or employee of the Company or any of its Subsidiaries nor any agent, affiliate or other Person acting on behalf of the Company
or any of its Subsidiaries has not complied with Applicable Laws or (B) could give rise to a notice of non-compliance with Applicable
Laws, and (iv) neither the Company nor any of its Subsidiaries is aware of any pending change or contemplated change to any Applicable
Law or regulation or governmental position; in each case that would be reasonably expected to have a Material Adverse Effect.
Section 5.30 Sanctions
Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer or controlled
affiliate of the Company or any director or officer of any of the Company’s Subsidiaries, is a Person that is, or is owned or controlled
by a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of
Foreign Asset Control (“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury,
or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and
Blocked Persons List or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”),
or (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings
with that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions of Ukraine, the Donetsk People’s
Republic and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned
Countries”)). Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the Pre-Paid
Advance, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person (a) for
the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result
in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated by the
Transaction Documents, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of
its Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. Neither the Company nor
any of its Subsidiaries nor any director, officer or controlled affiliate of the Company or any of its Subsidiaries, has ever had funds
blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.
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Section 5.31 No Integrated
Offering. Assuming the accuracy of the Investor’s representations and warranties set forth herein, neither the Company, nor
any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security
or solicited any offers to buy any security, other than in connection with the Transaction Documents, under circumstances that would cause
this offering of the Common Shares to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would
require the registration of Securities under the Securities Act, or (ii) any applicable shareholder approval provisions of the Principal
Market on which any of the securities of the Company are listed or designated.
Article VI. Indemnification
Section 6.01 Indemnification
by the Company. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Common Shares
hereunder, and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify
and hold harmless the Investor, its investment manager, Yorkville Advisors Global, LP, and their respective affiliates, and each of the
foregoing’s respective officers, directors, managers, members, partners, employees and agents (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement) and each Person who controls any of the foregoing within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable
and documented expenses in connection therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
incurred by the Investor Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement for the registration of the Common Shares as originally filed
or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor
specifically for inclusion therein; (b) any material misrepresentation or breach of any material representation or material warranty made
by the Company in this Agreement or any other certificate, instrument or document contemplated hereby or thereby; or (c) any material
breach of any material covenant, material agreement or material obligation of the Company contained in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable
under Applicable Law, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities,
which is permissible under Applicable Law.
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Section 6.02 Indemnification
by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in addition to all of the Investor’s
other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company, its Subsidiaries
and all of their respective officers, directors, stockholders, employees and agents (including, without limitation, those retained in
connection with the transactions contemplated by this Agreement) and each Person who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”) from and against
any and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out of, or relating
to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration
of the Common Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however, that the Investor will only be liable for
written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion in the
documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf of the Company specifically
for inclusion therein; (b) any material misrepresentation or breach of any material representation or material warranty made by the Investor
in this Agreement or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any material breach of
any material covenant, agreement or obligation of the Investor contained in this Agreement or any other certificate, instrument or document
contemplated hereby or thereby executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable
under Applicable Laws, the Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities,
which is permissible under Applicable Laws.
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Section 6.03 Notice of
Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company Indemnitee,
as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying party under this
Article VI, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify the indemnifying
party will not relieve it of liability under this Article VI except solely to the extent the indemnifying party is prejudiced by such
failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably satisfactory
to the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee
or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party fees and expenses of not
more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the reasonable opinion
of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee or Company Indemnitee and
the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor Indemnitee or Company
Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee shall cooperate
fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee or Company Indemnitee which
relates to such action or claim, unless (i) such cooperation or furnishing of information is likely to, in the opinion of the applicable
Investor Indemnitee’s or Company Indemnitee’s counsel, result in the waiver of attorney client privilege, or (ii) the interests
of the Investor Indemnitee or Company Indemnitee, as the case may be, and the indemnifying party conflict or are adverse with respect
to a particular action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee reasonably apprised as
to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement
of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Investor
Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release
from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party
shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The indemnification required by this Article VI shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and when bills are received.
Section 6.04 Remedies.
The remedies provided for in this Article VI are not exclusive and shall not limit any right or remedy which may be available to any indemnified
Person at law or equity. The obligations of the parties to indemnify or make contribution under this Article VI shall survive expiration
or termination of this Agreement.
Section 6.05 Limitation
of liability. Notwithstanding the foregoing, no party shall be entitled to recover from the other party for punitive, indirect, incidental
or consequential damages.
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Article VII.
Additional Covenants
The Company covenants with the
Investor, and the Investor covenants with the Company, as follows, which covenants of one party are for the benefit of the other party:
Section 7.01 Effective
Registration Statement.
(a) The Registration Statement. The Company has filed, in accordance with the provisions of the Securities
Act and the rules and regulations thereunder, with the SEC a shelf registration statement on Form S-3 (File Number 333-291595) (the “Initial
Registration Statement”) including a base prospectus, with respect to the issuance and sale of securities by the Company, including
the Common Shares, which contains, among other things a Plan of Distribution section disclosing the methods by which the Company may sell
the Common Shares. The Initial Registration Statement was declared effective on December 11, 2025, and remains in effect on the date hereof.
Except where the context otherwise requires, the Initial Registration Statement, as amended when it became effective, including all documents
filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus subsequently filed
with the SEC pursuant to Rule 424(b) under the Securities Act or deemed to be a part of the Initial Registration Statement pursuant to
Rule 430B of the Securities Act, is herein referred to as the “Registration Statement.”
(b) Initial Disclosure. The Company shall, (A) (i) no later than 9:00 a.m., New York City time, on
the first Business Day after the date of this Agreement, issue a press release summarizing the terms of the Transaction Documents, and
(ii) no later than 4:30 p.m., New York City time, on the first Business Day after the date of this Agreement file with the SEC a current
report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form
required by the Exchange Act and attaching all the material Transaction Documents ((A) (i) and (ii), including any exhibits thereto, collectively,
the “Current Report”) and (B) no later than 4:30 p.m., New York City time, on the first Business Day after the date
of this Agreement file with the SEC a Prospectus Supplement pursuant to Rule 424(b) of the Securities Act disclosing all information relating
to the transactions contemplated by the Transaction Documents required to be disclosed therein and an updated Plan of Distribution, including,
without limitation, the name of the Investor, the value of Common Shares being offered hereunder, the terms of the offering, the Purchase
Price of the Common Shares, the amount of the Pre-Paid Advance, the terms and conditions of the Pre-Paid Advance, and other material terms
of the offering, and any other information or disclosure necessary to register the transactions contemplated by the Transaction Documents
(the “Initial Prospectus Supplement,” and collectively with the Current Report, the “Initial Disclosures”)
and shall provide the Investor with adequate opportunity to review the Initial Disclosures prior to filing. To the extent required, promptly
after the Closing Date and each Purchase Notice Date (if required), the Company shall file with the SEC a Prospectus Supplement pursuant
to Rule 424(b) of the Securities Act disclosing all information relating to a particular Closing or Advance required to be disclosed therein
to the extent necessary to register all of the Common Shares issued and issuable pursuant thereto under the Registration Statement.
(c) Maintaining a Registration Statement. The Company shall maintain the effectiveness of the Registration
Statement with respect to the Common Shares at all times a Pre-Paid Advance remains outstanding. Notwithstanding anything to the contrary
contained in this Agreement, the Company shall ensure that the Registration Statement (including, without limitation, all amendments and
supplements thereto) and the prospectus (including, without limitation, all amendments and supplements thereto) used in connection with
the Registration Statement 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. If the Company becomes unable to utilize the Initial Registration Statement for the offering of Common Shares contemplated
herein, the Company shall promptly file a Registration Statement to the extent necessary to register the resale of the Common Shares by
the Investor and the parties agree to negotiate in good faith such changes as may be necessary to this Agreement to reflect the prompt
resale of such Common Shares by the Investor.
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(d) Intentionally Omitted.
(e) Delivery of Final Documents. The Company shall furnish to the Investor without charge, (i) at least
one copy of each Registration Statement as declared effective by the SEC and any amendment(s) thereto, including financial statements
and schedules, all documents incorporated therein by reference, all exhibits and each preliminary prospectus, (ii) at the request of the
Investor, at least one copy of the final prospectus included in such Registration Statement and all amendments and supplements thereto
(or such other number of copies as the Investor may reasonably request) and (iii) such other documents as the Investor may reasonably
request from time to time in order to facilitate the disposition of the Common Shares owned by the Investor pursuant to a Registration
Statement. Filing of the forgoing with the SEC via its EDGAR system shall satisfy the requirements of this Section.
(f) Amendments and Other Filings. The Company shall (i) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and the related prospectus used in connection with such Registration
Statement, and (ii) all periodic reports, as may be necessary to keep such Registration Statement effective at all times for so long as
the Pre-Paid Advance remains outstanding.
Section 7.02 Registration
and Listing. The Company shall use its commercially reasonable efforts to cause the Common Shares to continue to be registered as
a class of securities under Section 12(b) of the Exchange Act, and to comply with its reporting and filing obligations under the Exchange
Act, and shall not take any action or file any document (whether or not permitted by the Securities Act or the Exchange Act) to terminate
or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act or Securities Act.
The Company shall use its commercially reasonable efforts to continue the listing and trading of the Common Shares and the listing of
the Common Shares purchased by the Investor hereunder on the Principal Market and to comply with the Company’s reporting, filing
and other obligations under the rules and regulations of the Principal Market. If the Company receives any final and non-appealable notice
that the listing or quotation of the Common Shares on the Principal Market shall be terminated on a date certain, the Company shall promptly
(and in any case within 24 hours) notify the Investor of such fact in writing and shall use its commercially reasonable efforts to cause
the Common Shares to be listed or quoted on another Principal Market.
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Section 7.03 Blue Sky.
The Company shall take such action, if any, as is necessary by the Company in order to obtain an exemption for or to qualify the Common
Shares for sale by the Company to the Investor pursuant to the Transaction Documents, and at the request of the Investor, the subsequent
resale of Common Shares by the Investor, in each case, under applicable state securities or “Blue Sky” laws and shall provide
evidence of any such action so taken to the Investor from time to time for so long as the pre-Paid Advance remains outstanding; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify, (y) subject itself to general taxation in any such jurisdiction,
or (z) file a general consent to service of process in any such jurisdiction.
Section 7.04 Listing of
Common Shares. As of each Purchase Notice Date, the Common Shares to be sold by the Company from time to time hereunder will have
been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to the approval by the
Principal Market of the Supplemental Listing Application.
Section 7.05 Opinion of
Counsel. Prior to the date of a Pre-Paid Advance, the Investor shall have received an opinion letter from counsel to the Company in
form and substance reasonably satisfactory to the Investor.
Section 7.06 Exchange
Act Registration. As long as the Company is subject to the filing requirements under the Exchange Act, the Company will file in a
timely manner all reports and other documents required of it as a reporting company under the Exchange Act and will not take any action
or file any document (whether or not permitted by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing
obligations under the Exchange Act.
Section 7.07 Transfer
Agent Instructions. At all times while the Registration Statement is in effect for the transactions contemplated by the Transaction
Documents, the Company shall (if required by the transfer agent for the Common Shares) cause legal counsel for the Company to deliver
to the transfer agent for the Common Shares (with a copy to the Investor) instructions to issue the Common Shares to the Investor free
of restrictive legends upon each Advance if the delivery of such instructions are consistent with Applicable Law.
Section 7.08 Corporate
Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence of the Company for
so long as the Pre-Paid Advance remains outstanding.
Section 7.09 Notice of
Certain Events Affecting Registration. The Company will promptly notify the Investor, and confirm in writing, upon its becoming aware
of the occurrence of any of the following events in respect of a Registration Statement or related Prospectus: (i) receipt of any request
for amendments or supplements to the Registration Statement or related Prospectus; (ii) the issuance by the SEC or any other Federal governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Common
Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose; (iv) the happening of any
event that makes any statement made in the Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related
Prospectus or documents so that, in the case of the Registration Statement, 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 not misleading, and that
in the case of the related Prospectus, 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, or of the necessity to amend the Registration Statement or supplement a related Prospectus to comply with the Securities
Act or any other law; or (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement
would be appropriate and the Company will promptly make available to the Investor any such supplement or amendment to the related Prospectus.
The Investor shall not deliver to the Company any Purchase Notice, and shall not sell any Common Shares pursuant to any pending Purchase
Notice, during the continuation of any of the foregoing events (each of the events described in the immediately preceding clauses (i)
through (v), inclusive, a “Material Outside Event”).
- 26 -
Section 7.10 Reservation
of Shares. As of each Closing, and at all times thereafter, the Company shall have reserved from its duly authorized capital stock
not less than the maximum number of Common Shares issuable upon delivery of Purchase Notices pursuant to this Agreement (assuming for
this purpose that all such Common Shares will be issued at the Floor Price then in effect and without giving effect to any limitations
pursuant to Section 3.01(b)). If at any time the number of Common Shares authorized to be issued is not sufficient to meet the reserve
requirements of this section, the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number
of shares, including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the Company's
obligations pursuant this Agreement and recommending that stockholders vote in favor of an increase in such authorized number of shares
sufficient to meet these requirements.
Section 7.11 Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all reasonable
and documented expenses incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing
and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement
thereto; (ii) the preparation, issuance and delivery of any Common Shares issued pursuant to this Agreement, (iii) all fees and disbursements
of the Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements of Investor’s
counsel, accountants and other advisors), (iv) the qualification of the Common Shares under securities laws in accordance with the provisions
of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of copies of any Prospectus and any amendments
or supplements thereto requested by the Investor, (vi) the fees and expenses incurred in connection with the listing or qualification
of the Common Shares for trading on the Principal Market, or (vii) filing fees of the SEC and the Principal Market.
- 27 -
Section 7.12 Disclosure
of Transaction, Current Report. Notwithstanding anything contained in this Agreement to the contrary, the Company expressly agrees
that from and after the filing of the Current Report with the SEC, the Company shall have publicly disclosed all material, nonpublic information
provided to the Investor (or the Investor’s representatives or agents) by the Company or any of its Subsidiaries, or any of their
respective officers, directors, employees, agents or representatives in connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon the filing of the Current Report, the Company acknowledges and agrees that any and all confidentiality
or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective
officers, directors, affiliates, employees or agents, on the one hand, and Investor or any of its respective officers, directors, affiliates,
employees or agents, on the other hand shall terminate and be of no further force or effect in any respect. The Company shall not, and
the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to,
provide the Investor with any material, non-public information regarding the Company or any of its Subsidiaries without the express prior
written consent of the Investor (which may be granted or withheld in the Investor’s sole discretion). The Company understands and
confirms that the Investor will rely on the foregoing representations in effecting resales of Common Shares.
Section 7.13 Use of Proceeds.
The proceeds from the funding of the Pre-Paid Advance or the sale of the Common Shares by the Company to Investor shall be used by the
Company in the manner as will be set forth in the Prospectus included in any Registration Statement (and any post-effective amendment
thereto) and any Prospectus Supplement thereto filed pursuant to this Agreement. Neither the Company nor any Subsidiary will, directly
or indirectly, use the proceeds of the transactions contemplated herein to repay any advances or loans to any executives, directors, or
employees of the Company or any Subsidiary, or to make any payments in respect of any related party obligations. Neither the Company nor
any of its Subsidiaries will, directly or indirectly, use the proceeds from the transactions contemplated herein, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) for the purpose of funding
or facilitating any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation of Sanctions or
Applicable Laws by any Person (including any Person participating in the transactions contemplated by this Agreement, whether as underwriter,
advisor, investor or otherwise). The Company shall not, without the prior written consent of the Investor, loan, invest, transfer or “downstream”
any cash proceeds, or assets or property acquired with cash proceeds from the transactions hereunder to any of its Subsidiaries unless
any such Subsidiary executes and delivers a subsidiary guarantee in a form acceptable to the Investor.
Section 7.14 Compliance
with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section 7.15 Market Activities.
Neither the Company, nor any of its Subsidiaries, nor any of their respective officers, directors or controlling Persons will, directly
or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute
or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of Common
Shares or (ii) sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any compensation for soliciting
purchases of the Common Shares.
- 28 -
Section 7.16 Trading Information.
On a daily basis (provided the Investor has sold any shares during such day) and otherwise upon the Company’s reasonable request,
the Investor agrees to provide the Company with trading reports setting forth the number and average sales prices of Common Shares sold
by the Investor during the prior trading week.
Section 7.17 Selling Restrictions.
Except as expressly set forth below, the Investor covenants that from and after the date hereof through and including the Trading Day
next following the expiration or termination of this Agreement as provided in Section 10.01 (the “Restricted Period”),
none of the Investor any of its officers, or any entity managed or controlled by the Investor (collectively, the “Restricted
Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall engage in any “short
sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Shares, either for its own principal
account or for the principal account of any other Restricted Person, solely to the extent such “short sale” establishes a
net short position in the Common Shares. Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein
shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period from:
(1) selling “long” (as defined under Rule 200 promulgated under Regulation SHO) Common Shares; or (2) selling a
number of Common Shares equal to the number of Advance Shares that such Restricted Person is unconditionally obligated to purchase under
a pending Purchase Notice but has not yet received from the Company or the transfer agent pursuant to this Agreement.
Section 7.18 Assignment.
Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other Person, except for assignments
by the Investor to any of its affiliates.
Section 7.19 No Frustration.
(a) No Frustration. The Company shall not enter into, announce or recommend to its stockholders any
agreement, plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair
the ability or right of the Company to perform its obligations under the Transaction Documents to which it is a party, including, without
limitation, the obligation of the Company to deliver the Common Shares to the Investor in respect of a Purchase Notice.
(b) From the date hereof until the date upon which the Pre-Paid Advance to be issued hereunder have been repaid
(and/or converted) in full, without the prior written consent of the Investor, the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, other than Permitted Liens, enter into, create, incur, assume or suffer to exist any Lien on
or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom.
- 29 -
(c) No Variable Rate Transactions or Related Party Payments. (A) From the date hereof until the date
upon which the Pre-Paid Advance has been repaid in full, the Company shall not repay any loans to any executives or employees of the Company
or to make any payments in respect of any related party debt, and (B) from the date hereof until the earlier of the date 60 days from
the date hereof or the date upon which the Pre-Paid Advance has been repaid in full the Company shall not effect or enter into an agreement
to effect a Variable Rate Transaction, provided however, (i) the Company may enter into a new At-the-Market Issuance Sales Agreement with
a registered broker dealer, and (ii) the Company may effect sales under such At-the-Market Issuance Sales Agreement, at any time and without
limitation, provided that 25% of the aggregate proceeds received by the Company from any offer and sale of shares pursuant to the At-the-Market
Issuance Sales Agreement at prices less than $0.16 per share are offered to pay amounts outstanding under this Agreement in accordance
with Section 2.02(e)(ii). The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude
any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and
without any bond or other security being required.
“Variable
Rate Transaction” shall mean a transaction in which the Company (i) issues or sells any Common Shares or Common Share Equivalents
that are convertible into, exchangeable or exercisable for, or include the right to receive additional Common Shares either (A) at a conversion
price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the
Common Shares at any time after the initial issuance of Common Shares or Common Share Equivalents, or (B) with a conversion, exercise
or exchange price that is subject to being reset at some future date after the initial issuance of such equity or debt security or upon
the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common
Shares (including, without limitation, any “full ratchet,” “share ratchet,” “price ratchet,” or “weighted
average” anti-dilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction), or (ii) enters into, or effects a transaction under, any agreement, including
but not limited to an “equity line of credit” or other continuous offering or similar offering of Common Shares or Common
Share Equivalents.
“Permitted
Liens” shall mean (1) any security interest granted to the Investor, (2) existing Liens disclosed by the Company on a Disclosure
Schedule attached hereto; (3) inchoate Liens for taxes, assessments or governmental charges or levies not yet due, as to which the grace
period, if any, related thereto has not yet expired, or being contested in good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP; (4) Liens of carriers, materialmen, warehousemen, mechanics and landlords and
other similar Liens which secure amounts which are not yet overdue by more than 60 days or which are being contested in good faith by
appropriate proceedings for which adequate reserves have been established in accordance with GAAP; (5) Liens incurred in the ordinary
course of business in connection with workers compensation claims, unemployment insurance, pension liabilities and social security benefits
and Liens securing the performance of bids, tenders, leases and contracts in the ordinary course of business, statutory obligations, surety
bonds, performance bonds and other obligations of a like nature (other than appeal bonds) incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed money); and (6) Liens in favor of a banking institution arising by operation
of law encumbering deposits (including the right of set-off) and contractual set-off rights held by such banking institution and which
are within the general parameters customary in the banking industry and only burdening deposit accounts or other funds maintained with
a creditor depository institution.
- 30 -
Article VIII.
Non-Exclusive Agreement
Notwithstanding anything contained
herein, this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time throughout
the term of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities and/or convertible
notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted into or replaced
by Common Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures, and/or grant any
rights with respect to its existing and/or future share capital.
Article IX.
Choice of Law/Jurisdiction
Section 9.01 This Agreement,
and any and all claims, proceedings or causes of action relating to this Agreement or arising from this Agreement or the transactions
contemplated herein, including, without limitation, tort claims, statutory claims and contract claims, shall be interpreted, construed,
governed and enforced under and solely in accordance with the substantive and procedural laws of the State of New York, in each case as
in effect from time to time and as the same may be amended from time to time, and as applied to agreements performed wholly within the
State of New York. The Parties further agree that any action between them shall be heard in New York County, New York, and expressly consent
to the jurisdiction and venue of the Supreme Court of New York, sitting in New York County, New York and the United States District Court
of the Southern District of New York, sitting in New York, New York, for the adjudication of any civil action asserted pursuant to this
Agreement.
EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT 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 AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
- 31 -
Article X. Termination
Section 10.01 Termination.
In the event that the Closing shall not have occurred within ten (10) days of the date hereof, then the Investor shall have the right
to terminate its obligations under this Agreement on after the close of business on such date without liability; provided, however,
the right to terminate this Agreement under this Section 10(a) shall not be available to the Investor if the failure of the Closing to
have been consummated by such date is the result of the Investor’s breach of this Agreement.
Article XI. Notices
Any notices, consents, waivers,
or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have
been delivered (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by e-mail if sent on a Trading Day, or, if not
sent on a Trading Day, on the immediately following Trading Day; (iii) 5 days after being sent by U.S. certified mail, return receipt
requested, or (iv) 1 day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses for such communications shall be:
If to the Company, to:
Hyperscale Data, Inc.
11411 Southern Highlands Pkwy Suite 190
Las Vegas, NV 89141
Attn.:
William B. Horne, Chief Executive Officer
Email:
Will@ault.com
With a Copy (which shall not
constitute notice or delivery of process) to:
122 East 42nd Street, 50th Floor
Suite 5000
New York, NY 10168
Attn.:
Henry Nisser, President
& General Counsel
Email:
Henry@ault.com
If to the Investor(s):
YA II PN, LTD.
1012 Springfield Avenue
Mountainside, NJ 07092
Attention:
Mark Angelo
Portfolio Manager
Telephone:
(201) 985-8300
Email: mangelo@yorkvilleadvisors.com
With a Copy (which shall not
constitute notice or delivery of process) to:
David Fine, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092
Telephone:
(201) 985-8300
Email:
legal@yorkvilleadvisors.com
- 32 -
or at such other address and/or e-mail and/or
to the attention of such other Person as the recipient party has specified by written notice given to each other party three Business
Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver
or other communication, (ii) electronically generated by the sender’s email service provider containing the time, date, recipient
email address or (iii) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of personal service
in accordance with clause (i), (ii), (iii) or (iv) above, respectively.
Article XII. Miscellaneous
Section 12.01 Counterparts.
This Agreement may be executed in identical counterparts, both which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party. Facsimile or other electronically scanned and delivered
signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the
Electronic Signatures and Records Act or other Applicable Law, e.g., www.docusign.com), including by e-mail attachment, shall be
deemed to have been duly and validly delivered and be valid and effective for all purposes of this Agreement.
Section 12.02 Entire Agreement;
Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their respective
affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement contains the entire understanding
of the parties with respect to the matters covered herein and, except as specifically set forth herein, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived
or amended other than by an instrument in writing signed by the parties to this Agreement. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon
strict compliance by any other party hereto with its obligations hereunder, shall not constitute a waiver by such party of its right to
exercise any such right, power or remedy or any other right, power or remedy or to demand strict compliance with such obligations hereunder.
No custom or practice of the parties at variance with the terms hereof shall constitute a waiver by any party of its right to exercise
any right, power or remedy available to it hereunder or any other right, power or remedy or to demand strict compliance with the terms
of this Agreement.
Section 12.03 Reporting
Entity for the Common Shares. The reporting entity relied upon for the determination of the trading price or trading volume of the
Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto. The written
mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
- 33 -
Section 12.04 Structuring
Fee. Each of the parties shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or
others engaged by such party) in connection with this Agreement and the transactions contemplated hereby, except that the Company shall
pay the Investor a diligence fee in the amount of $35,000 which has been paid prior to the date hereof.
Section 12.05 Brokerage.
Each of the parties hereto represents that it has had no dealings in connection with this transaction with any finder or broker who will
demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor, on the other hand, agree
to indemnify the other against and hold the other harmless from any and all liabilities to any Person claiming brokerage commissions or
finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party in connection with this
Agreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 34 -
IN WITNESS WHEREOF,
the parties hereto have caused this Prepaid Advance Agreement to be executed by the undersigned, thereunto duly authorized, as of the
date first set forth above.
COMPANY:
Hyperscale Data Inc.
By:
Name:
William B. Horne
Title:
Chief Executive Officer
INVESTOR:
YA II PN, LTD.
By:
Yorkville Advisors Global, LP
Its:
Investment Manager
By:
Yorkville Advisors Global II, LLC
Its:
General Partner
By:
Name:
Matthew Beckman
Title:
Manager
- 35 -
ANNEX I TO THE
PREPAID ADVANCE AGREEMENT
DEFINITIONS
“Advance”
shall mean any purchase by the Investor of Advance Shares from the Company to the Investor pursuant to this Agreement.
“Advance Shares”
shall mean the Common Shares that the Company shall issue and sell to the Investor pursuant to the terms of this Agreement.
“Agreement”
shall have the meaning set forth in the preamble of this Agreement.
“Applicable Laws”
shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having
the force of law, whether local, national, or international, as amended from time to time, including without limitation (i) all applicable
laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate
to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt Practices Act of
1977, and (iii) any Sanctions laws.
“Business Day”
shall mean any day other than a Saturday, a Sunday or any day on which commercial banks in the City of New York are authorized or required
by law or executive order to close or be closed.
“Closing”
shall have the meaning set forth in recitals of this Agreement.
“Common Share Equivalents”
shall mean any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Shares, including,
without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.
“Common Shares”
shall have the meaning set forth in the recitals of this Agreement.
“Company”
shall have the meaning set forth in the preamble of this Agreement.
“Company Indemnitees”
shall have the meaning set forth in Section 6.02.
“Disclosure Schedule”
shall those certain disclosure schedules attached hereto and referenced in Article V.
“Environmental Laws”
shall have the meaning set forth in Section 5.14.
“Event of Default”
shall have the meaning set forth in Section 2.02(f).
“Exchange Act”
shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
shall have the meaning set forth in Section 3.01(b)(ii).
- 36 -
“Hazardous Materials”
shall have the meaning set forth in Section 5.14.
“Indemnified Liabilities”
shall have the meaning set forth in Section 6.01.
“Investor”
shall have the meaning set forth in the preamble of this Agreement.
“Investor Indemnitees”
shall have the meaning set forth in Section 6.01.
“Material Adverse Effect”
shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the
legality, validity or enforceability of this Agreement or the transactions contemplated herein or in the Transaction Documents, (ii) a
material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under this Agreement and the other Transaction Documents.
“Material Outside Event”
shall have the meaning set forth in Section 7.09.
“Maturity Date”
shall have the meaning set forth in Section 2.02(c).
“Notice”
shall have the meaning set forth in Section 7.20.
“Notice Period”
shall have the meaning set forth in Section 7.20.
“OFAC” shall
have the meaning set forth in Section 5.30.
“Ownership Limitation”
shall have the meaning set forth in Section 3.01(b)(i).
“Periodic Reports”
shall mean all of the Company’s reports required to be filed by the Company with the SEC under Applicable Laws and regulations (including,
without limitation, Regulation S-K), including annual reports (on Form 10-K), and quarterly reports (on Form 10-Q).
“Person”
shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
“Plan of Distribution”
shall mean the section of a Registration Statement disclosing the plan of distribution of the Common Shares.
“Pre-Paid
Advance” shall mean have the meaning set forth in Section 2.01(a).
“Principal Market”
shall mean the NYSE American; provided however, that in the event the Common Shares are ever listed or traded on the New York Stock Exchange,
or the Nasdaq Stock Market, then the “Principal Market” shall mean such other market or exchange on which the Common Shares
are then listed or traded to the extent such other market or exchange is the principal trading market or exchange for the Common Shares.
- 37 -
“Principal
Market Approval” means approval of the issuance of the Common Shares contemplated by this Agreement by the NYSE American.
“Prospectus”
shall mean any prospectus (including, without limitation, all amendments and supplements thereto) used by the Company in connection with
a Registration Statement, including documents incorporated by reference therein.
“Prospectus Supplement”
shall mean any prospectus supplement to a Prospectus filed with the SEC pursuant to Rule 424(b) under the Securities Act, including documents
incorporated by reference therein.
“Purchase Notice”
shall have the meaning set forth in Section 3.01(a).
“Purchase Notice Date”
shall mean each date the Investor delivers to the Company a Purchase Notice.
“Purchase Price”
shall mean a price per share equal to the lower of (a) a price per share equal to 130% of the VWAP on the Trading Day prior to the date
of execution of this Agreement (the “Fixed Price”) and (b) 90% of the lowest daily VWAP during the five (5) consecutive
Trading Days immediately prior to the Purchase Notice Date (the “Market Price”), but in either case not lower than
the Floor Price, and provided that the Investor may elect to use the Fixed Price in any Purchase Notice even if such price is greater
than or less than the Market Price.
“Registration Statement”
shall have the meaning set forth in Section 7.01(a).
“Regulation D”
shall mean the provisions of Regulation D promulgated under the Securities Act.
“Sanctions”
shall have the meaning set forth in Section 5.30.
“Sanctioned Countries”
shall have the meaning set forth in Section 5.30.
“SEC” shall
mean the U.S. Securities and Exchange Commission.
“SEC Documents”
shall mean (1) any registration statements filed by the Company with the SEC, including any related prospectus or prospectuses, for the
registration of the Common Shares, on file with the SEC at the time such registration statement became effective, including the financial
statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to
be a part thereof as of the effective date of such registration statement under the Securities Act, (2) any proxy statement or prospectus
filed by the Company with the SEC, including all documents incorporated or deemed incorporated therein by reference, whether or not included
in a registration statement, in the form in which such proxy statement or prospectus has most recently been filed with the SEC pursuant
to Rule 424(b) under the Securities Act, (3) all reports, schedules, registrations, forms, statements, information and other documents
filed with or furnished to the SEC by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the two years
prior to the date hereof, including, without limitation, the Current Report, (4) each Registration Statement, as the same may be amended
from time to time, the Prospectus contained therein and each Prospectus Supplement thereto and (5) all information contained in such filings
and all documents and disclosures that have been and heretofore shall be incorporated by reference therein.
- 38 -
“Securities Act”
shall have the meaning set forth in the recitals of this Agreement.
“Significant Subsidiary”
of any Person means any Subsidiary of that Person that constitutes a “significant subsidiary” (as defined in Rule 1-02(w)
of Regulation S-X under the Exchange Act) of that Person.
“Subsidiaries”
shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital stock or holds a majority
of the equity or similar interest of such Person or (y) controls or operates all or substantially all of the business, operations or administration
of such Person (whether by contract or otherwise), and the foregoing are collectively referred to herein as “Subsidiaries.”
“Trading Day”
shall mean any day during which the Principal Market shall be open for business.
“Transaction Documents”
means, collectively, this Agreement and each of the other agreements and instruments entered into or delivered by any of the parties hereto
in connection with the transactions contemplated hereby and thereby, as may be amended from time to time.
“VWAP” means,
for any Trading Day, the daily volume weighted average price of the Common Shares for such Trading Day on the Principal Market during
regular trading hours as reported by Bloomberg L.P.
- 39 -
ANNEX I TO THE
PREPAID ADVANCE AGREEMENT
CONDITIONS PRECEDENT TO THE INVESTOR’S
OBLIGATION TO FUND A PRE-PAID ADVANCE
Capitalized terms used in this Addendum and
not otherwise defined shall have the meanings ascribed to them in the Prepaid Advance Agreement
The obligation of the Investor to advance to the
Company the Pre-Paid Advance hereunder at a Closing is subject to the satisfaction, as of such Closing, of each of the following conditions,
provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion
by providing the Company with prior written notice signed by the Investor thereof:
The Company shall have duly executed and delivered
to the Investor each of the Transaction Documents to which it is a party.
The Company shall have delivered to the Investor
a compliance certificate executed by the chief executive officer of the Company certifying that Company has complied with all of the conditions
precedent to the Closing set forth herein and which may be relied upon by the Investor as evidence of satisfaction of such conditions
without any obligation to independently verify.
The Investor shall have received an opinion letter
from counsel to the Company in form and substance reasonably satisfactory to the Investor.
The Investor shall have received a closing statement
duly executed by an officer of the Company, setting forth wire transfer instructions of the Company for the payment of the amount of the
Pre-Paid Advance, the amount to be paid by the Investor, which shall be the full amount of the Pre-Paid Advance, less any deductions that
may be agreed by the parties.
The board of directors of the Company has approved
the transactions contemplated by the Transaction Documents; said approval has not been amended, rescinded or modified and remains in full
force and effect as of the date hereof and as of such Closing, and a true, correct and complete copy of such resolutions duly adopted
by the board of directors of the Company shall have been provided to the Investor.
Each and every representation and warranty of
the Company shall be true and correct in all material respects (other than representations and warranties qualified by materiality, which
shall be true and correct in all respects) as of the date when made and as of such Closing as though originally made at that time (except
for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the
Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions set forth in each Transaction
Document, including this Agreement, required to be performed, satisfied or complied with by the Company at or prior to the Closing.
- 40 -
(I) Trading in the Common Shares shall not have
been suspended by the SEC, the Principal Market or FINRA, (II) the Company shall not have received any notice that the listing or quotation
of the Common Shares on the Principal Market shall be terminated, nor shall there have been imposed any suspension of, or restriction
on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common Shares
that is continuing, and (III) the Company shall not have received any notice from DTC to the effect that a suspension of, or restriction
on, accepting additional deposits of the Common Shares, electronic trading or book-entry services by DTC with respect to the Common Shares
is being imposed or is contemplated.
No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental entity of competent
jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.
Since the date of execution of this Agreement,
no event or series of events shall have occurred that has resulted in or would reasonably be expected to result in a Material Adverse
Effect, or an Event of Default.
- 41 -
EXHIBIT A
FORM OF PURCHASE NOTICE
HYPERSCALE DATA, INC.
Dated: ______________
Investor Notice Number: ____
On behalf of YA II PN, LTD.
(the “Investor”), the undersigned hereby certifies, with respect to the purchase of Common Shares of HYPERSCALE DATA,
INC. (the “Company”) issuable in connection with this Purchase Notice, delivered pursuant to that certain Prepaid Advance
Agreement, dated as of June __, 2026 (as amended and supplemented from time to time in accordance with its terms, the “Agreement”),
as follows:
1.
Advance requested in the Purchase Notice
2.
Fixed Price
3.
Market Price
4.
Purchase Price per share
5.
Number of Common Shares due to Investor
The aggregate Purchase Price
of the Common Shares to be paid by Investor pursuant to this Purchase Notice shall be offset against amounts outstanding under the Pre-Paid
Advance made pursuant to the Agreement (first towards accrued and unpaid interest, if any, and then towards outstanding principal) as
follows:
1.
Amount offset against accrued and unpaid Interest (if any)
$[____________]
2.
Amount offset against principal
$[____________]
3.
Total amount of Pre-Paid Advance outstanding following the Advance
$[____________]
Please issue the number of Common
Shares due to the Investor to the account of the Investor as follows:
Investor’s
DTC participant #:
[_______]
- 42 -
The undersigned has executed
this Purchase Notice as of the date first set forth above.
YA II PN, Ltd.
By:
Yorkville Advisors Global, LP
Its:
Investment Manager
By:
Yorkville Advisors Global II, LLC
Its:
General Partner
By:
Name:
Title:
- 43 -
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: ex99_1.htm · Sequence: 4
Exhibit 99.1
Hyperscale Data Announces Transaction with
Yorkville
LAS VEGAS--(PR NEWSWIRE) – June 11, 2026
– Hyperscale Data, Inc. (NYSE American: GPUS), an artificial intelligence (“AI”)
data center company anchored by Bitcoin (“Hyperscale Data” or the “Company”), announced that it
has entered into a Pre-Paid Advance Agreement (the “Agreement”) with YA II PN, Ltd., a Cayman Islands exempt limited
partnership (“Yorkville”).
Pursuant to the Agreement, Yorkville will today
make an advance (the “Advance”) to the Company in the principal amount of $15,958,000 (the “Principal Face
Amount”), subject to a discount of 6% for an actual commitment amount of $15,000,520. The Advance will bear interest at an annual
rate of four percent (4%), which interest will accrue and be paid, together with any remaining Principal Face Amount, on or before December
10, 2027.
At any time that there is an outstanding balance
under the Advance, Yorkville may provide written notice (each, a “Purchase Notice”) requesting the Company to issue
and sell shares of its Class A common stock to Yorkville, which shall be offset against and reduce the amounts outstanding under the Advance,
at a price per share equal to the lower of (a) $0.2153 and (b) 90% of the lowest daily volume weighted average price of the Company’s
Class A common stock during the five (5) consecutive trading days immediately preceding the date on which Yorkville provides the Purchase
Notice to the Company, but in no event shall this price be less than $0.10 per share.
For
more information on Hyperscale Data and its subsidiaries, Hyperscale Data recommends that stockholders, investors and any other interested
parties read Hyperscale Data’s public filings and press releases available under the Investor Relations section at hyperscaledata.com
or available at www.sec.gov.
About Hyperscale
Data, Inc.
Through its wholly
owned subsidiary Sentinum, Inc., Hyperscale Data owns and operates a data center at which it mines digital assets and offers colocation
and hosting services for the emerging AI ecosystems and other industries. Hyperscale Data’s other wholly owned subsidiary, Ault
Capital Group, Inc. (“ACG”), is a diversified holding company pursuing growth by acquiring undervalued businesses and
disruptive technologies with a global impact.
Hyperscale Data currently
expects the divestiture of ACG (the “Divestiture”) to occur in the second quarter of 2027. Upon the occurrence of the
Divestiture, the Company would be an owner and operator of data centers to support high-performance computing services, as well as a holder
of the digital assets. Until the Divestiture occurs, the Company will continue to provide, through ACG and its wholly and majority-owned
subsidiaries and strategic investments, mission-critical products that support a diverse range of industries, including an AI software
platform, equipment rental services, defense/aerospace, industrial, automotive and hotel operations. In addition, ACG is actively engaged
in private credit and structured finance through Ault Lending, LLC, a licensed lending subsidiary. Hyperscale Data’s headquarters
are located at 11411 Southern Highlands Parkway, Suite 190, Las Vegas, NV 89141.
On December 23, 2024,
the Company issued one million (1,000,000) shares of a newly designated Series F Exchangeable Preferred Stock (the “Series F
Preferred Stock”) to all common stockholders and holders of the Series C Preferred Stock on an as-converted basis. The Divestiture
will occur through the voluntary exchange of the Series F Preferred Stock for shares of Class A Common Stock and Class B Common Stock
of ACG (collectively, the “ACG Shares”). The Company reminds its stockholders that only those holders of the Series
F Preferred Stock who agree to surrender such shares, and do not properly withdraw such surrender, in the exchange offer through which
the Divestiture will occur, will be entitled to receive the ACG Shares and consequently be shareholders of ACG upon the occurrence of
the Divestiture.
Forward-Looking Statements
This press release
contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements generally include statements that are predictive
in nature and depend upon or refer to future events or conditions, and include words such as “believes,” “plans,”
“anticipates,” “projects,” “estimates,” “expects,” “intends,” “strategy,”
“future,” “opportunity,” “may,” “will,” “should,” “could,” “potential,”
or similar expressions. Statements that are not historical facts are forward-looking statements. Forward-looking statements are based
on current beliefs and assumptions that are subject to risks and uncertainties.
Forward-looking statements speak only
as of the date they are made, and the Company undertakes no obligation to update any of them publicly in light of new information or future
events. Actual results could differ materially from those contained in any forward-looking statement as a result of various factors. More
information, including potential risk factors, that could affect the Company’s business and financial results are included in the
Company’s filings with the U.S. Securities and Exchange Commission, including, but not limited to, the Company’s Forms 10-K,
10-Q and 8-K. All filings are available at www.sec.gov and on the Company’s website at
hyperscaledata.com.
Hyperscale Data Investor Contact:
IR@hyperscaledata.com or 1-888-753-2235
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