Form 8-K
8-K — Hyperscale Data, Inc.
Accession: 0001214659-26-007572
Filed: 2026-06-18
Period: 2026-06-18
CIK: 0000896493
SIC: 3533 (OIL & GAS FILED MACHINERY & EQUIPMENT)
Item: Entry into a Material Definitive Agreement
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — p6172618k.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)
EX-99.2 — EXHIBIT 99.2 (ex99_2.htm)
GRAPHIC (hyperscaledata_logo.jpg)
GRAPHIC (olshan_footer.jpg)
GRAPHIC (olshanaddress_header.jpg)
GRAPHIC (olshanlogo_header.jpg)
GRAPHIC (olshanwebaddy_footer.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: p6172618k.htm · Sequence: 1
false
0000896493
0000896493
2026-06-18
2026-06-18
0000896493
GPUS:ClassCommonStock0.001ParValueMember
2026-06-18
2026-06-18
0000896493
GPUS:Sec13.00SeriesDCumulativeRedeemablePerpetualPreferredStockParValue0.001PerShareMember
2026-06-18
2026-06-18
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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
18, 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:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange on which registered
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 18, 2026, Hyperscale Data, Inc. (the “Company”)
entered into an At-the-Market Issuance Sales Agreement (the “Sales Agreement”) with Spartan Capital Securities, LLC,
as sales agent (the “Agent”) to sell shares of its Class A common stock, par value $0.001 (the “Common Stock”),
having an aggregate offering price of up to $300,000,000 (the “Shares”) from time to time, through an “at the
market offering” (the “ATM Offering”) as defined in Rule 415 under the Securities Act of 1933, as amended (the
“Securities Act”). On June 18, 2026, the Company filed a prospectus supplement with the Securities and Exchange Commission
(“SEC”) relating to the offer and sale of up to $300,000,000 of Common Stock in the ATM Offering.
The offer and sale of the Shares will be made
pursuant to the Company’s effective “shelf” registration statement on Form S-3 and an accompanying base prospectus
contained therein (Registration Statement No. 333-291595) filed with the SEC on November 17, 2025, and declared effective by the
SEC on December 11, 2025.
This Current Report on Form 8-K shall not constitute
an offer to sell or the solicitation of any offer to buy the Shares, nor shall there be any offer, solicitation or sale of the Shares
in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws
of such state.
Subject to the terms and conditions of the Sales
Agreement, the Agent will use its commercially reasonable efforts to sell the Shares, based upon the Company’s instructions, consistent
with its normal trading and sales practices and applicable state and federal laws, rules and regulations and rules of the NYSE American.
The Company will set the parameters for sales of the Shares, including the number of Shares to be sold, the time period during which sales
are requested to be made, any limitation on the number of Shares that may be sold in one trading day, and any minimum price below which
sales may not be made. Under the Sales Agreement, the Agent may sell the Shares by any method permitted by law deemed to be an “at
the market offering,” as defined in Rule 415 of the Securities Act. The Company or the Agent may, upon written notice to the other
party in accordance with the terms of the Sales Agreement, suspend offers and sales of the Shares. The Company and the Agent each have
the right, in its sole discretion, to terminate the Sales Agreement at any time upon prior written notice pursuant to the terms and subject
to the conditions set forth in the Sales Agreement.
The foregoing description of the terms of the
Sales Agreement does not purport to be complete and is subject to, and qualified in its entirety by reference to, the Sales Agreement,
which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.
The legal opinion of Olshan Frome Wolosky LLP,
counsel to the Company, relating to the legality of the issuance and sale of the Shares is filed as Exhibit 5.1 hereto.
Item 7.01 Regulation FD Disclosure.
On June 18, 2026 the Company issued a press release
announcing the filing of the prospectus supplement and entry into the Sales Agreement. A copy of the press release is furnished herewith
as Exhibit 99.1 to this Current Report on Form 8-K.
On June 18, 2026, the Company issued a press release
announcing a cash dividend to holders of the 13.00% Series D Cumulative Redeemable Preferred Stock of $0.2708333
per share (the “Press Release”). In addition, the Press Release also announced
a cash dividend to holders of the 10.00% Series E Cumulative Redeemable Perpetual Preferred Stock
of $0.20833 per share. The record date for both
dividends is June 30, 2026, and the payment date is July 10, 2026. A copy of the Press
Release is furnished herewith as Exhibit 99.2 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-
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
Exhibit No.
Description
5.1
Opinion of Olshan Frome Wolosky LLP.
10.1
At-the-Market Issuance Sales Agreement, dated December 19, 2025, with Spartan Capital Securities, LLC
23.1
Consent of Olshan Frome Wolosky LLP (included in the opinion filed as Exhibit 5.1).
99.1
Press Release regarding ATM
99.2
Press Release Regarding Dividends on Preferred Shares
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 18, 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 18, 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 $300,000,000 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 18, 2026, relating to the offer and sale of the Shares (as so supplemented, the
“Prospectus”) pursuant to the At-The-Market Issuance Sales Agreement (the “Sales Agreement”), dated as of June
18, 2026, by and between the Company and Spartan Capital Securities, LLC.
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 Sales 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.
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.
June 18, 2026
Page 2
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
HYPERSCALE DATA, INC.
Common Stock
(par value $0.001 per share)
At-The-Market Issuance Sales Agreement
June 18, 2026
Spartan Capital Securities, LLC
45 Broadway – 19th Floor
New York, NY 10006
Ladies and Gentlemen:
Hyperscale Data, Inc., a Delaware
corporation (the “Company”), confirms its agreement (this “Agreement”) with Spartan Capital Securities,
LLC (“Spartan”), as follows:
1. Issuance
and Sale of Shares. The Company agrees to issue and sell through Spartan, shares (the “Placement Shares”) of the
Company’s Class A common stock, par value $0.001 per share (the “Common Stock”), from time to time during the
term of this Agreement and on the terms set forth in this Agreement; provided however, that in no event will the Company issue
or sell through Spartan such number of Placement Shares that would exceed $300,000,000 (the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on
the amount of Placement Shares issued and sold under this Agreement will be the sole responsibility of the Company and that Spartan will
have no obligation in connection with such compliance, provided that Spartan follows the lawful trading instructions in all material respects
that were provided by the Company pursuant to any Placement Notice. The issuance and sale of Placement Shares through Spartan will be
effected pursuant to the Registration Statement (as defined below) filed by the Company and declared effective by the U.S. Securities
and Exchange Commission (the “SEC”), although nothing in this Agreement will be construed as requiring the Company
to use the Registration Statement to issue Common Stock.
The Company has filed with
the SEC, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and the
rules and regulations thereunder (the “Securities Act Regulations”), a registration statement on Form S-3 (File No.
333-291595), including a base prospectus, relating to certain securities, including the Placement Shares, to be issued from time to time
by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations thereunder.
The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”)
to the base prospectus included as part of the registration statement. The Company will furnish to Spartan, for use by it, copies of the
prospectus included as part of the registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares.
Except when the context otherwise requires, such registration statement, including all documents filed as part thereof or incorporated
by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the SEC pursuant
to Rule 424(b) under the Securities Act Regulations or deemed to be a part of the registration statement pursuant to Rule 430B
of the Securities Act Regulations, is herein called the “Registration Statement.” The base prospectus, including all
documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement,
in the form in which the prospectus and/or Prospectus Supplement have most recently been filed by the Company with the SEC pursuant to
Rule 424(b) under the Securities Act Regulations is herein called the “Prospectus.” Any reference herein to the
Registration Statement, the Prospectus, or any amendment or supplement thereto will be deemed to refer to and include the documents incorporated
by reference therein, and any reference herein to the terms “amend,” “amendment,” or “supplement”
respecting the Registration Statement or the Prospectus will be deemed to refer to and include the filing after the execution hereof of
any document with the SEC deemed to be incorporated by reference therein (the “Incorporated Documents”).
For purposes of this Agreement,
all references to the Registration Statement, the Prospectus, or to any amendment or supplement thereto will be deemed to include the
most recent copy filed with the SEC pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive
Data Electronic Application system when used by the SEC (collectively, “EDGAR”).
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will notify
Spartan by email notice (or other method mutually agreed upon by the parties) of the number of Placement Shares, the period during which
sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any one day, and any minimum price
below which sales may not be made (a “Placement Notice”), the form of which is attached hereto as Schedule 1,
the contents of which may be conveyed by written or verbal instruction. The Placement Notice will be effective unless and until: (a) Spartan
declines to accept the terms contained therein for any reason, in its sole discretion, by notice to the Company within two Business Days
after the receipt of the Placement Notice; (b) the entire amount of the Placement Shares thereunder have been sold; (c) the
Company suspends or terminates the Placement Notice; or (d) the Agreement has been terminated under the provisions of Section 13.
The amount of any discount, commission, or other compensation to be paid by the Company to Spartan in connection with the sale of the
Placement Shares will be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed
that neither the Company nor Spartan will have any obligation whatsoever respecting a Placement or any Placement Shares unless and until
the Company delivers a Placement Notice to Spartan and Spartan does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of Sections 2, 3, and 4
of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by Spartan. Subject to the terms and conditions of this Agreement, Spartan, for the period specified in the Placement
Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal
laws, rules, and regulations and the rules of the NYSE American LLC (the “Exchange”), to sell the Placement Shares
up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. Spartan will provide written or oral
confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which
it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable
by the Company to Spartan pursuant to Section 2 for such sales, and the Net Proceeds (as defined below) payable to the Company, with
an itemization of the deductions made by Spartan (as set forth in Section 5(b)) from the gross proceeds that it receives from such
sales. Subject to the terms of the Placement Notice, Spartan may sell Placement Shares by any method permitted by law deemed to be an
“at the market” offering as defined in Rule 415 of the Securities Act Regulations, including sales made directly on the
Exchange or on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of a Placement
Notice, Spartan may also sell Placement Shares by any other method permitted by law, including in privately negotiated transactions, with
the Company’s consent. “Trading Day” means any day on which Common Stock is purchased and sold on the Exchange.
Notwithstanding any other provisions of this Agreement, during any period in which the Company is in possession of material, nonpublic
information, the Company and Spartan agree that: (a) no sale of Placement Shares will take place; (b) the Company will not request
the sale of any Placement Shares; and (c) Spartan will not be obligated to sell or offer to sell any Placement Shares.
4. Suspension
of Sales. The Company or Spartan may, upon notice to the other party in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged by any of the
individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable email correspondence
to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Shares; provided, however,
that such suspension will not affect or impair any party’s obligations respecting any Placement Shares sold hereunder prior to the
receipt of such notice. While a suspension is in effect, any obligation under Section 7(l), 7(m), and 7(n) with respect to delivery of
certificates, opinions, and comfort letters to Spartan shall be waived. Each of the parties agrees that no such notice under this Section
4 will be effective against any other party unless it is made to each of the individuals named on Schedule 3 hereto, as such schedule
may be amended from time to time.
2
5. Sale
and Delivery to Spartan; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon Spartan’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, Spartan, for the period
specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable state and federal laws, rules, and regulations and the rules of the Exchange to sell such Placement Shares up to the amount
specified, and otherwise in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that: (i) there
can be no assurance that Spartan will be successful in selling Placement Shares; (ii) Spartan will incur no liability or obligation
to the Company or any other Person (as defined herein) if it does not sell Placement Shares for any reason other than a failure by Spartan
to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws,
rules and regulations and the rules of the Exchange to sell such Placement Shares as required under this Agreement; and (iii) Spartan
will be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by
Spartan and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which
such sales are made (each, a “Settlement Date”). Spartan shall notify the Company of each sale of Placement Shares
no later than 8:00 AM ET on the day following the Trading Day that Spartan sold Placement Shares. The amount of proceeds to be delivered
to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal
to the aggregate sales price received by Spartan, after deduction for: (i) Spartan’s commission, discount, or other compensation
for such sales payable by the Company pursuant to Section 2 hereof; and (ii) any transaction fees imposed by any governmental or
self-regulatory organization for such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting Spartan’s or its designee’s account (provided Spartan will have given
the Company written notice of such designee within a reasonable time prior to the Settlement Date) at The Depository Trust Company through
its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto,
which in all cases will be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, Spartan
will deliver the related Net Proceeds in same-day funds to an account designated by the Company on, or prior to, the Settlement Date.
The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares
on a Settlement Date through no fault of Spartan, the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Section 11(a) hereto, it will: (i) hold Spartan harmless against any loss, claim, damage, or expense (including reasonable
and documented legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer
agent (if applicable); and (ii) pay to Spartan (without duplication) any commission, discount, or other compensation to which it
would otherwise have been entitled absent such default.
(d) Limitations
on Offering Size. Under no circumstances will the Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this Agreement
would exceed the lesser of: (i) together with all sales of Placement Shares under this Agreement, the Maximum Amount; or (ii) the
amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of directors, a duly authorized
committee thereof, or a duly authorized executive committee, and notified to Spartan in writing. Under no circumstances will the Company
cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized
from time to time by the Company’s board of directors, a duly authorized committee thereof, or a duly authorized executive committee,
and notified to Spartan in writing.
3
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, Spartan that as of the date of this Agreement
and as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different date or time:
(a) Registration
Statement and Prospectus. The Company and, assuming no act or omission on the part of Spartan that would make such statement untrue,
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 has been filed with the SEC and has been declared effective under the Securities Act. The
Prospectus Supplement will name Spartan as the agent in the section entitled “Plan of Distribution.” The Company has not received,
and has no notice of, any order of the SEC preventing or suspending the use of the Registration Statement or threatening or instituting
proceedings for that purpose. The Registration Statement and the offer and sale of Placement Shares as contemplated hereby 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 the Prospectus or to be filed as exhibits to the Registration
Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments or supplements
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 Spartan and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement
Date and completion of the distribution of the Placement Shares, will not distribute any offering material in connection with the offering
or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free Writing Prospectus (as defined
below) to which Spartan has consented. The Common Stock is currently listed on the Exchange under the trading symbol “GPUS.”
Except as disclosed in the Registration Statement, including the Incorporated Documents, the Company has not, in the 12 months preceding
the date hereof, received notice from the Exchange to the effect that the Company is not in compliance with the listing or maintenance
requirements. Except as disclosed in the Registration Statement, including the Incorporated Documents, or the Prospectus, the Company
has no reason to believe that it will not in the foreseeable future continue to be in compliance with all such listing and maintenance
requirements.
(b) No
Misstatement or Omission. The Registration Statement, when it became effective, and the Prospectus, and any amendment or supplement
thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the requirements
of the Securities Act. At each Settlement 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 or becomes effective, did not, and will
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. The Prospectus and any amendment and supplement thereto, on the date thereof and at each Applicable
Time (defined below), 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 the 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 will 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 Spartan specifically for use in the preparation thereof.
(c) Conformity
with Securities Act and Exchange Act. The documents incorporated by reference in the Registration Statement, the 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.
(d) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement,
the Prospectus, and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, complied as to form in
all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto
as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except: (i) as may be otherwise indicated in such financial statements or the
notes thereto; or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present 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 and cash flows of the Company for the periods specified (subject,
in the case of unaudited statements, to normal year-end audit adjustments that will not be material, either individually or in the aggregate);
the other financial and statistical data respecting the Company and the Subsidiaries contained or incorporated by reference in the Registration
Statement, the Prospectus, and the Issuer Free Writing Prospectuses, if any, 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 Registration Statement or the Prospectus that are not included or
incorporated by reference as required; the Company and the Subsidiaries (as defined below) do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not described in the Registration Statement (including the exhibits
thereto) and the Prospectus that are required to be described in the Registration Statement or the Prospectus (including exhibits thereto
and Incorporated Documents); and all disclosures contained or incorporated by reference in the Registration Statement, the Prospectus,
and the Issuer Free Writing Prospectuses, if any, 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.
4
(e) Conformity
with EDGAR Filing. The Prospectus delivered to Spartan for use in connection with the sale of the Placement Shares pursuant to this
Agreement will be identical to the versions of the Prospectus created to be transmitted to the SEC for filing via EDGAR, except to the
extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its Subsidiaries are, and will be, duly organized, validly existing as a corporation, limited partnership, limited
liability company, or other legal entity, and in good standing under the laws of their respective jurisdictions of organization. The Company
and each of its Subsidiaries are, and will be, duly qualified as a foreign corporation for transaction of business and in good standing
under the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all corporate power and authority necessary to own or hold their respective properties
and to conduct their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to
be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse
effect or would reasonably be expected to have a material adverse effect on the assets, business, operations, earnings, properties, condition
(financial or otherwise), prospects, stockholders’ equity, or results of operations of the Company and the Subsidiaries (as defined
below) taken as a whole, or prevent or materially interfere with consummation of the transactions contemplated hereby (a “Material
Adverse Effect”).
(g) Subsidiaries.
The subsidiaries set forth on Schedule 6(g) of the disclosure schedules furnished to Spartan by the Company (collectively, the
“Subsidiaries”), are the Company’s only subsidiaries. Except as set forth in the Registration Statement and in
the Prospectus, the Company owns, directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien,
charge, security interest, encumbrance, right of first refusal, or other restriction, and all the equity interests of the Subsidiaries
are validly issued and are fully paid, nonassessable, and free of preemptive and similar rights.
(h) No
Violation or Default. Neither the Company nor any of its Subsidiaries is: (i) in violation of its charter or bylaws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant, or condition contained in any indenture, mortgage, deed of
trust, loan agreement, or other agreement or instrument to which the Company or any of its Subsidiaries is a party, by which the Company
or any of its Subsidiaries is bound, or to which any of the property or assets of the Company or any of its Subsidiaries are subject;
or (iii) in violation of any law or statute or any judgment, order, rule, or regulation of any court, arbitrator, or governmental
or regulatory authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as described in the Prospectus, the
Prospectus Supplement, or the Incorporated Documents, to the Company’s knowledge, no other party under any material contract or
other agreement to which it or any of its Subsidiaries is a party is in default in any respect thereunder where such default would reasonably
be expected to have a Material Adverse Effect.
5
(i) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus,
and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there has not been: (i) any
Material Adverse Effect, or any development involving a prospective Material Adverse Effect, in or affecting the business, properties,
management, financial, condition (financial or otherwise), results of operations, or prospects of the Company and the Subsidiaries taken
as a whole; (ii) any transaction that is material to the Company and the Subsidiaries taken as a whole; (iii) any obligation
or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, that is material
to the Company and the Subsidiaries taken as a whole; (iv) any material change in the capital stock (other than as a result of the
sale of Placement Shares or other than as described in a proxy statement filed on Schedule 14A or a Registration Statement on Form S-4
and otherwise publicly announced) or outstanding long-term indebtedness of the Company or any of its Subsidiaries; or (v) any dividend
or distribution of any kind declared, paid, or made on the capital stock of the Company or any Subsidiary, other than in each case above,
in the ordinary course of business or as otherwise disclosed in the Registration Statement or Prospectus (including any document deemed
incorporated by reference therein).
(j) Capitalization.
The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid, and non-assessable. The Company
has an authorized, issued, and outstanding capitalization as set forth in the Registration Statement as of the date referred to therein
(other than the grant of additional options under the Company’s existing stock option plans or changes in the number of outstanding
Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible
into, Common Stock outstanding on the date hereof or as a result of the issuance of Placement Shares), and such authorized capital stock
conforms to the description thereof set forth in the Registration Statement and the Prospectus. The description of the Common Stock in
the Registration Statement and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated
by the Registration Statement or the Prospectus, as of the date referred to therein, the Company did not have reserved or available for
issuance any shares of Common Stock in respect of options, any rights or warrants to subscribe for, any securities or obligations convertible
into or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or other securities.
(k) Authorization;
Enforceability. The Company has full legal right, power, and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed, and delivered by the Company and is a legal, valid, and binding agreement of
the Company enforceable in accordance with its terms, except to the extent that: (i) enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general equitable principles;
and (ii) the indemnification and contribution provisions of Section 11 hereof may be limited by federal or state securities laws
and public policy considerations in respect thereof.
(l) Authorization
of Placement Shares. The Placement Shares, 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,
will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security
interest, or other claim (other than any pledge, lien, encumbrance, security interest, or other claim arising from an act or omission
of Spartan or a purchaser), 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 Placement Shares, when issued, will conform in
all material respects to the description thereof set forth in or incorporated into the Prospectus.
(m) No
Consents Required. No consent, approval, authorization, order, registration, or qualification of or with any court or arbitrator or
any governmental or regulatory authority is required for the execution, delivery, and performance by the Company of this Agreement, and
the issuance and sale by the Company of the Placement Shares as contemplated hereby, except for such consents, approvals, authorizations,
orders, and registrations or qualifications as may be required under applicable state securities laws or by the bylaws and rules of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) or the Exchange in connection with the sale of the Placement
Shares by Spartan.
6
(n) No
Preferential Rights. Except as set forth in the Registration Statement, the Prospectus or Schedule 6(n): (i) no person,
as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has
the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other capital
stock or other securities of the Company (other than upon the exercise of options or warrants to purchase Common Stock or upon the exercise
of options that may be granted from time to time under the Company’s stock option plans); (ii) no Person has any preemptive
rights, rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase
any Common Stock or shares of any other capital stock or other securities of the Company from the Company that have not been duly waived
respecting the offering contemplated hereby; (iii) no Person has the right to act as an underwriter or as a financial advisor to
the Company in connection with the offer and sale of the Placement Shares; and (iv) no Person has the right, contractual or otherwise,
to require the Company to register under the Securities Act any Common Stock or shares of any other capital stock or other securities
of the Company, or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Placement Shares as contemplated thereby
or otherwise, except for such rights as have been waived on or prior to the date hereof.
(o) Independent
Public Accountant. Marcum LLP (“Marcum”), whose reports on the consolidated financial statements of the Company
are filed with the SEC as part of the Company’s most recent Annual Report on Form 10-K and incorporated into the Registration Statement,
and CBIZ CPAs P.C. (“CBIZ” and with Marcum, the “Accountants”) are and, during the periods covered
by its report, were independent registered public accounting firms within the meaning of the Securities Act and the Public Company Accounting
Oversight Board (United States). To the Company’s knowledge, after due inquiry, the Accountant is not in violation of the auditor
independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) respecting the Company.
(p) Enforceability
of Agreements. To the Company’s knowledge, all agreements between the Company and third parties expressly referenced in the
Prospectus, other than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company
on EDGAR, are legal, valid, and binding obligations of the Company enforceable in accordance with their respective terms, except to the
extent that: (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’
rights generally and by general equitable principles; and (ii) the indemnification provisions of certain agreements may be limited
be federal or state securities laws or public policy considerations in respect thereof, except for any unenforceability that, individually
or in the aggregate, would not unreasonably be expected to have a Material Adverse Effect.
(q) No
Litigation. Except as set forth in the Registration Statement or the Prospectus: (i) there are no legal, governmental, or regulatory
actions, suits, or proceedings pending or, to the Company’s knowledge, any legal, governmental, or regulatory investigations to
which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject that, individually
or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would reasonably be expected to have a Material
Adverse Effect or materially and adversely affect the ability of the Company to perform its obligations under this Agreement; (ii) to
the Company’s knowledge, no actions, suits, or proceedings are threatened or contemplated by any governmental or regulatory authority
or threatened by others that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries, would
reasonably be expected to have a Material Adverse Effect; (iii) there are no current or pending legal, governmental, or regulatory,
actions, suits, proceedings or, to the Company’s knowledge, investigations that are required under the Securities Act to be described
in the Prospectus that are not described in the Prospectus; and (iv) there are no contracts or other documents that are required
under the Securities Act to be filed as exhibits to the Registration Statement that are not so filed.
(r) Licenses
and Permits. Except as set forth in the Registration Statement or the Prospectus, the Company and each of its Subsidiaries possess
or have obtained all licenses, certificates, consents, orders, approvals, permits, and other authorizations issued by, and have made all
declarations and filings with, the appropriate federal, state, local, or foreign governmental or regulatory authorities that are necessary
for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration
Statement and the Prospectus (the “Permits”), except where the failure to possess, obtain, or make the same would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Registration Statement
or the Prospectus, neither the Company nor its Subsidiaries have received written notice of any proceeding relating to revocation or modification
of any such Permit or have any reason to believe that such Permit will not be renewed in the ordinary course, except when the failure
to obtain any such renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
7
(s) S-3
Eligibility. (i) At the time of filing the Registration Statement; and
(ii) if applicable, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities
Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange
Act, or form of prospectus), the Company met the then-applicable requirements for use of Form S-3 under the Securities Act, including
compliance with General Instruction I.B.I of Form S-3, up to the Maximum Amount.
(t) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing
of its last Annual Report on Form 10-K, indicating that it: (i) has failed to pay any dividend or sinking fund installment on preferred
stock; or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases,
which defaults, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(u) Certain
Market Activities. Neither the Company or any of the Subsidiaries, nor any of their respective directors, officers, or controlling
Persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Placement Shares.
(v) Broker-Dealer
Relationships. Neither the Company nor any of the Subsidiaries or any related entities: (i) are required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act; or (ii) directly or indirectly through one or more
intermediaries, control or are a “person associated with a member” or “associated person of a member” (within
the meaning set forth in the FINRA rules). To the Company’s knowledge, there are no affiliations or associations between any member
of FINRA and any of the Company’s officers, directors, or 5% or greater security holders, except as set forth in the Registration
Statement. All of the information (including, but not limited to, information regarding affiliations, security ownership, and trading
activity) provided to Spartan or its counsel by the Company, its officers and directors, and the holders of any securities (debt or equity)
or warrants, options, or rights to acquire any securities of the Company in connection with the filing to be made and other supplemental
information to be provided to FINRA pursuant to FINRA Rule 5110 in connection with the transactions contemplated by this Agreement is
true, complete, and correct, and copies of any Company filings required to be filed with FINRA have been filed with the SEC or delivered
to Spartan for filing with FINRA.
(w) No
Reliance. The Company has not relied upon Spartan or legal counsel for Spartan for any legal, tax, or accounting advice in connection
with the offering and sale of the Placement Shares.
(x) Taxes.
The Company and each of its Subsidiaries have filed all federal, state, local, and foreign tax returns that have been required to be filed
and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in
good faith, except when the failure to do so would not reasonably be expected to have a Material Adverse Effect. Except as otherwise disclosed
in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or
any of its Subsidiaries that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
The Company has no knowledge of any federal, state, or other governmental tax deficiency, penalty, or assessment that has been or might
be asserted or threatened against it that could have a Material Adverse Effect.
8
(y) Title
to Real and Personal Property. The Company and each of its Subsidiaries have good and defensible title to all of their real and personal
property owned by them that are material to the business of the Company or such Subsidiary or to the Company’s financial condition,
in each case, free and clear of all liens, encumbrances, and defects, except as described in the Registration Statement and Prospectus
or that do not materially affect the value of the properties of the Company and its Subsidiaries, considered as one enterprise, and do
not interfere in any material respect with the use made and proposed to be made of such properties by the Company and its Subsidiaries,
considered as one enterprise; and all of the leases, subleases, and other rights under which the Company or any of its Subsidiaries holds
or uses properties described in the Registration Statement and Prospectus are in full force and effect, with such exceptions as would
not reasonably be expected to have a Material Adverse Effect, and neither the Company nor any of its Subsidiaries has any notice of any
material claim of any sort that has been asserted by anyone adverse to the rights of the Company or its Subsidiaries under any of the
leases, subleases, and other rights mentioned above, or affecting or questioning the rights of the Company or any Subsidiary thereof to
the continued possession or use of the leased or subleased premises or the premises granted by leases, subleases, and other rights. The
Company and each of its Subsidiaries have the consents, easements, rights-of-way, or licenses from any Person as are necessary to enable
them to conduct their business in the manner described in the Registration Statement and the Prospectus, subject to such qualifications
as may be set forth in the Registration Statement and the Prospectus, and except for the consents, easements, rights-of-way, or licenses
the lack of which would not have, individually or in the aggregate, a Material Adverse Effect.
(z) Intellectual
Property. Except as set forth in the Registration Statement or the Prospectus, to the Company’s knowledge, the Company and its
Subsidiaries own or possess adequate enforceable rights to use all patents, patent applications, trademarks (both registered and unregistered),
service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential information, systems, or procedures) (collectively, the “Intellectual
Property”), necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent
that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; except as disclosed in writing to Spartan, the Company and any of its Subsidiaries have
not received any written notice of any claim of infringement or conflict that asserted Intellectual Property rights of others, which infringement
or conflict, if the subject of an unfavorable decision, would result in a Material Adverse Effect; there are no pending, or to the Company’s
knowledge, threatened judicial proceedings or interference proceedings against the Company or its Subsidiaries challenging the Company’s
or its Subsidiaries’ rights in or to or the validity of the scope of any of the Company’s or its Subsidiaries’ material
patents, patent applications, or proprietary information; to the Company’s knowledge, no other entity or individual has any right
or claim in any of the Company’s or its Subsidiaries’ owned, material patents, patent applications, or any patent to be issued
therefrom by virtue of any contract, license, or other agreement entered into between such entity or individual and the Company or a Subsidiary
or by any non-contractual obligation of the Company or a Subsidiary, other than by written licenses granted by the Company or a Subsidiary;
the Company and its Subsidiaries have not received any written notice of any claim challenging the rights of the Company or a Subsidiary
in or to any Intellectual Property owned, licensed, or optioned by the Company or such Subsidiary that, if the subject of an unfavorable
decision, would result in a Material Adverse Effect.
(aa) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries: (i) are in compliance
with any and all applicable federal, state, local, and foreign laws, rules, regulations, decisions, and orders relating to the protection
of human health and safety, the environment, hazardous or toxic substances or wastes, pollutants, or contaminants (collectively, “Environmental
Laws”); (ii) have received and are in compliance with all permits, licenses, or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses as described in the Registration Statement and the Prospectus; (iii) have
not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous
or toxic substances or wastes, pollutants, or contaminants, except, in the case of any of clauses (i), (ii), or (iii) above, for any such
failure to comply or failure to receive required permits, licenses, other approvals or liability as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and (iv) there are no costs or liabilities arising under Environmental
Laws respecting the operation of the Company’s and each of its Subsidiaries’ properties (including any capital or operating
expenditures required for clean-up or closure of the properties, compliance with Environmental Laws, any permit, license, or approval
or any related legal constraints or operating activities, and any potential liabilities of third parties assumed under contract by the
Company or any of its Subsidiaries) that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
9
(bb) Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls designed 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 generally accepted accounting principles 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 respecting any differences. The Company is not aware of any material weaknesses in its internal control over financial
reporting (other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included
in the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than as set forth in
the Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for
the Company and designed such disclosure controls and procedures to ensure that material information relating to the Company and each
of its Subsidiaries is made known to the certifying officers by others within those entities, particularly during the period in which
the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s
certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within 90 days prior
to the filing date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”). The
Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have
been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K under the
Securities Act). Other than as set forth in the Prospectus, to the knowledge of the Company, the Company’s “internal controls
over financial reporting” and “disclosure controls and procedures” are effective.
(cc) Sarbanes-Oxley.
There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, to comply with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations
promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal
executive officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications
required by Sections 302 and 906 of the Sarbanes-Oxley Act respecting all reports, schedules, forms, statements, and other documents required
to be filed by it or furnished by it to the SEC. For purposes of the preceding sentence, “principal executive officer” and
“principal financial officer” will have the meanings given to such terms in the Sarbanes-Oxley Act.
(dd) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions,
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist respecting Spartan pursuant
to this Agreement.
(ee) Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge
of the Company, is threatened that would reasonably be expected to result in a Material Adverse Effect.
(ff) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the Company
and its Subsidiaries will conduct their business in a manner so that they will not become subject to the Investment Company Act.
(gg) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder, and any related or similar
rules, regulations, or guidelines, issued, administered, or enforced by any governmental agency having jurisdiction over the Company (collectively,
the “Money Laundering Laws”), except as would not reasonably be expected to result in a Material Adverse Effect; and
no action, suit, or proceeding by or before any court or governmental agency, authority, or body or any arbitrator involving the Company
or any of its Subsidiaries respecting the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
10
(hh) Off-Balance
Sheet Arrangements. There are no transactions, arrangements, and other relationships between and/or among the Company, and/or, to
the knowledge of the Company, any of its affiliates and any unconsolidated entity, including any structural finance, special purpose,
or limited purpose entity (each, an “Off Balance Sheet Transaction”) that could reasonably be expected to affect materially
the Company’s liquidity or the availability of or requirements for its capital resources, including those Off Balance Sheet Transactions
described in the SEC’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations
(Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus that have not been described as required.
(jj) Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at-the-market” or
continuous equity transaction.
(jj) ERISA.
To the knowledge of the Company: (i) each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered, or contributed to by the Company
or any of its Subsidiaries (other than a Multiemployer Plan, within the meaning of Section 3(37) of ERISA) for employees or former employees
of the Company and any of its Subsidiaries has been maintained in compliance with its terms and the requirements of any applicable statutes,
orders, rules, and regulations, including ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred respecting any such plan
(excluding transactions effected pursuant to a statutory or administrative exemption); and (iii) for each such plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such plan (excluding
for these purposes accrued but unpaid contributions) equals or exceeds the present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions, other than, in the case of (i), (ii), and (iii) above, as would not reasonably be expected to
have a Material Adverse Effect.
(kk) Margin
Rules. Neither the issuance, sale, and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the Prospectus will violate Regulation T, U, or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(ll) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and
each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies of similar
size engaged in similar businesses in similar industries.
(mm) No Improper
Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries or any of their respective executive
officers has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose
any contribution in violation of law) or made any contribution or other payment to any official of, or candidate for, any federal, state,
municipal, or foreign office or other Person charged with similar public or quasi-public duty in violation of any law or of the character
required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among the Company or, to
the Company’s knowledge, any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers and stockholders
of the Company or, to the Company’s knowledge, any Subsidiary, on the other hand, that is required by the Securities Act to be described
in the Registration Statement and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between
or among the Company or any Subsidiary or any affiliate of them, on the one hand, and the directors, officers, stockholders, or directors
of the Company or, to the Company’s knowledge, any Subsidiary, on the other hand, that is required by the rules of FINRA to be described
in the Registration Statement and the Prospectus that is not so described; (iv) except as described in the Prospectus, there are
no material outstanding loans or advances or material guarantees of indebtedness by the Company or, to the Company’s knowledge,
any Subsidiary to or for the benefit of any of their respective officers or directors or any of the members of the families of any of
them; and (v) the Company has not offered, or caused any placement agent to offer, Common Stock to any Person with the intent to
influence unlawfully: (1) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s
level or type of business with the Company or any Subsidiary; or (2) a trade journalist or publication to write or publish favorable
information about the Company or any Subsidiary or any of their respective products or services; and (vi) neither the Company nor
any Subsidiary nor, to the Company’s knowledge, any employee or agent of the Company or any Subsidiary has made any payment of funds
of the Company or any Subsidiary or received or retained any funds in violation of any law, rule, or regulation (including the Foreign
Corrupt Practices Act of 1977), which payment, receipt, or retention of funds is of a character required to be disclosed in the Registration
Statement or the Prospectus.
11
(nn) Status
under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act at the
times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(oo) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of
each Applicable Time (as defined in Section 25 below), did not, does not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated document deemed
to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from
any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by Spartan specifically
for use therein.
(pp) No Conflicts.
Except as set forth on Schedule 6(pp), the execution of this Agreement; the issuance, offering, or sale of the Placement Shares;
the consummation of any of the transactions contemplated herein; and the compliance by the Company with the terms and provisions hereof
will not conflict with or result in a breach of any of the terms and provisions of; has not constituted and will not constitute a default
under; or has not resulted in and will not result in the creation or imposition of any lien, charge, or encumbrance upon any property
or assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of
the property or assets of the Company is subject, except: (i) such conflicts, breaches, or defaults as may have been waived; and
(ii) such conflicts, breaches, and defaults that would not reasonably be expected to have a Material Adverse Effect; nor will such
action result in any violation of the provisions of the organizational or governing documents of the Company or in any material violation
of the provisions of any statute or any order, rule, or regulation applicable to the Company or of any court or of any federal, state,
or other regulatory authority or other government body having jurisdiction over the Company, except where such violation would not reasonably
be expected to have a Material Adverse Effect.
(qq) Regulatory
Compliance.
(i) The
Company represents that neither the Company or any of its Subsidiaries (collectively, the “Entity”) nor any director, officer,
employee, agent, affiliate, or representative of the Entity is a government, individual, or entity that is owned or controlled by any
director, officer, employee, agent, affiliate, or representative of the Entity that is:
(1) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United
Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”);
or
(2) located,
organized, or resident in a country or territory that is the subject of Sanctions (including without limitation Burma/Myanmar, Cuba, Iran,
North Korea, and Sudan).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use, lend, contribute, or otherwise make available the proceeds
of the offering to any subsidiary, joint venture partner, or other director, officer, employee, agent, affiliate, or representative of
the Entity:
(1) to
fund or facilitate 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
12
(2) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor, or otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the Prospectus, for the past five years, it has not knowingly engaged in,
is not now knowingly engaged in, and will not engage 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.
(rr) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other taxes (other than income taxes) that are required to be paid
in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will have been fully complied with in all material respects.
Any certificate signed by an officer of the Company
and delivered to Spartan or to counsel for Spartan pursuant to or in connection with this Agreement will be deemed to be a representation
and warranty by the Company, as applicable, to Spartan as to the matters set forth therein. The Company acknowledges that Spartan and,
for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the Company and counsel to Spartan, will rely upon
the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
7. Covenants
of the Company. The Company covenants and agrees with Spartan that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by Spartan under the Securities Act (including in circumstances when such requirement may be satisfied pursuant
to Rule 172 under the Securities Act): (i) the Company will notify Spartan promptly of the time when any subsequent amendment to
the Registration Statement, other than documents incorporated by reference, has been filed with the SEC and/or has become effective or
any subsequent supplement to the Prospectus has been filed and of any request by the SEC for any amendment or supplement to the Registration
Statement or Prospectus or for additional information; (ii) the Company will prepare and file with the SEC, promptly upon Spartan’s
request, any amendments or supplements to the Registration Statement or Prospectus that, in Spartan’s reasonable opinion, may be
necessary or advisable in connection with the distribution of the Placement Shares by Spartan (provided, however, that the failure
of Spartan to make such request will not relieve the Company of any obligation or liability hereunder, or affect Spartan’s right
to rely on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy Spartan
will have respecting the failure to make such filing will be to cease making sales under this Agreement until such amendment or supplement
is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus relating to the
Placement Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted to Spartan within a reasonable
time before the filing and Spartan has not reasonably objected thereto (provided, however, that the failure of Spartan to
make such objection will not relieve the Company of any obligation or liability hereunder, or affect Spartan’s right to rely on
the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy Spartan will have
respecting the failure by the Company to provide Spartan with such copy will be to cease making sales under this Agreement) and the Company
will furnish to Spartan at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each
amendment or supplement to the Prospectus to be filed with the SEC as required pursuant to the applicable paragraph of Rule 424(b) of
the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the SEC as required pursuant
to the Exchange Act, within the period prescribed (the determination to file or not file any amendment or supplement with the SEC under
this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, will be made exclusively by the Company).
13
(b) Notice
of SEC Stop Orders. The Company will advise Spartan, promptly after it receives notice or obtains knowledge thereof, of the issuance
or threatened issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the
qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such a stop order should be issued. The Company will advise Spartan promptly after it receives any request by the SEC
for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus
or for additional information related to the offering of the Placement Shares or for additional information related to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by Spartan under the Securities Act respecting the offer and sale of the Placement Shares (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act) (the “Prospectus Delivery Period”), the Company will
comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective
due dates all reports and any definitive proxy or information statements required to be filed by the Company with the SEC pursuant to
Sections 13(a), 13(c), 14, 15(d), or any other provision of or under the Exchange Act. If the Company has omitted any information from
the Registration Statement pursuant to Rule 430A under the Securities Act, it will use its best efforts to comply with the provisions
of and make all requisite filings with the SEC pursuant to said Rule 430A and to notify Spartan promptly of all such filings. If during
the Prospectus Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during the Prospectus Delivery Period it is necessary to amend or supplement the Registration Statement
or Prospectus to comply with the Securities Act, the Company will promptly notify Spartan to suspend the offering of Placement Shares
during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance; provided, however, that the Company may delay any amendment or
supplement if, in the sole discretion of the Company, it is in the Company’s best interest to do so.
(d) Listing
of Placement Shares. During the Prospectus Delivery Period, the Company will use its reasonable best efforts to cause the Placement
Shares to be listed on the Exchange and to qualify the Placement Shares for sale under the securities laws of such jurisdictions as Spartan
reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Placement Shares;
provided, however, that the Company will not be required in connection therewith to qualify as a foreign corporation or dealer in securities
or file a general consent to service of process in any jurisdiction.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to Spartan and its counsel (at the expense of the Company) copies
of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements
to the Registration Statement or Prospectus that are filed with the SEC during the Prospectus Delivery Period (including all documents
filed with the SEC during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable
and in such quantities as Spartan may from time to time reasonably request and, at Spartan’s request, will also furnish copies of
the Prospectus to each exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company will
not be required to furnish any document (other than the Prospectus) to Spartan to the extent such document is available on EDGAR.
(f) Earnings
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later than
15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act. The Company’s compliance with the reporting requirements of
the Exchange Act shall be deemed to satisfy this Section 7(f).
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
14
(h) Notice
of Other Sales. Without the prior written notice to Spartan, followed by Spartan’s consent, the Company will not, directly or
indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to
purchase or acquire, Common Stock during the period beginning on the fifth Trading Day immediately prior to the date on which any Placement
Notice is delivered to Spartan hereunder and ending on the fifth Trading Day immediately following the final Settlement Date respecting
Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale
of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly or indirectly
in any other “at-the-market” offering sell, contract to sell, grant any option to sell or otherwise dispose of any Common
Stock (other than the Placement Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock prior to the later of the termination of this Agreement and the earliest to
occur of: (i) the date on which this Agreement is terminated by the Company pursuant to Section 13(b)(ii); (ii) the date on
which Spartan terminates this Agreement pursuant to Section 13(a); or (iii) the thirtieth day immediately following the final Settlement
Date respecting Placement Shares sold pursuant to such Placement Notice; provided, however, that such restrictions will
not be required in connection with the Company’s issuance or sale of: (1) Common Stock, options to purchase Common Stock or
Common Stock issuable upon the exercise of options, pursuant to any employee or director stock option or benefits plan, stock ownership
plan or dividend reinvestment plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan)
of the Company whether now in effect or hereafter implemented; (2) Common Stock issuable upon conversion of securities or the exercise
of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise
in writing to Spartan; and (3) Common Stock, or securities convertible into or exercisable for Common Stock, offered and sold in
a privately negotiated transaction to vendors, customers, strategic partners or potential strategic partners who are qualified institutional
buyers and not more than three Persons that are “accredited investors” within the meaning of such term under paragraph (a)(1),
(a)(2), (a)(3), (a)(7), or (a)(8) of Rule 501 under the Securities Act and otherwise conducted in a manner so as not to be integrated
with the offering of Common Stock hereby.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise Spartan promptly after it will have
received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion,
certificate, letter or other document required to be provided to Spartan pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by Spartan or its representatives
in connection with the transactions contemplated hereby, including providing information and making available documents and senior corporate
officers, during regular business hours and at the Company’s principal offices or such other location mutually agreed to by the
parties, as Spartan may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees that on such dates as the Securities Act requires, the Company
will: (i) file a prospectus supplement with the SEC under the applicable paragraph of Rule 424(b) under the Securities Act (each
and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth, within the relevant
period, the amount of Placement Shares sold through Spartan, the Net Proceeds to the Company and the compensation payable by the Company
to Spartan respecting such Placement Shares; and (ii) deliver such number of copies of each such prospectus supplement to each exchange
or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(l) Representation
Dates; Certificate. On the date of this Agreement and each time the Company:
(i) files
the Prospectus relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering
of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means
of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Shares;
15
(ii) files
an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A that contains restated financial statements);
(iii) files
its quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files
a current report on Form 8-K containing amended audited financial information (other than information “furnished” pursuant
to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of
certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange
Act (each date of filing of one or more of the documents referred to in clauses (i) through (iv) will be a “Representation Date”);
the Company will furnish Spartan (but
in the case of clause (iv) above only if Spartan reasonably determines that the information contained in such Form 8-K is material) with
a certificate, in the form attached hereto as Exhibit A. The requirement to provide a certificate under this Section 7(l) will
be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver will continue until the
earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter will be considered a Representation
Date) and the next occurring Representation Date; provided, however, that such waiver will not apply for any Representation
Date on which the Company files its annual report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to
sell Placement Shares following a Representation Date when the Company relied on such waiver and did not provide Spartan with a certificate
under this Section 7(l), then before the Company delivers the Placement Notice or Spartan sells any Placement Shares, the Company will
provide Spartan with a certificate, in the form attached hereto as Exhibit A, dated the date of the Placement Notice.
(m) Legal
Opinion. On the date of this Agreement and within five Trading Days of each Representation Date for which the Company is obligated
to deliver a certificate in the form attached hereto as Exhibit A for which no waiver is applicable, the Company will cause to
be furnished to Spartan written opinions of Olshan Frome Wolosky LLP (“Company Counsel”), or other counsel reasonably
satisfactory to Spartan, in form and substance reasonably satisfactory to Spartan and its counsel; provided, however, the
Company will be required to furnish to Spartan no more than one opinion hereunder per calendar quarter; provided, further, that
in lieu of such opinions for subsequent periodic filings under the Exchange Act, counsel may furnish Spartan with a letter (a “Reliance
Letter”) to the effect that Spartan may rely on a prior opinion delivered under this Section 7(m) to the same extent as if it
were dated the date of such letter (except that statements in such prior opinion will be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented as of the date of the Reliance Letter).
(n) Comfort
Letters. On the date of this Agreement and within five Trading Days of each Representation Date, other than pursuant to Section 7(l)(iii),
for which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit A for which no waiver is applicable,
the Company will cause CBIZ to furnish Spartan a letter (the “Comfort Letter”), dated the date the Comfort Letter is
delivered, which will meet the requirements set forth in this Section 7(n). The Comfort Letter from CBIZ will be in a form and substance
reasonably satisfactory to Spartan: (i) confirming that it is an independent registered public accounting firm within the meaning
of the Securities Act and the PCAOB; (ii) stating, as of such date, the conclusions and findings of such firm respecting the financial
information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with
registered public offerings (the first such letter, the “Initial Comfort Letter”); and (iii) updating the Initial
Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified
as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter.
(o) Market
Activities. The Company will not, directly or indirectly: (i) take any action designed to cause or result in, or that constitutes
or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of Common Stock; or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone any
compensation for soliciting purchases of the Placement Shares other than Spartan.
16
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to be registered as an “investment company,”
as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and Spartan in its capacity as agent
hereunder, neither Spartan nor the Company (including its agents and representatives, other than Spartan in its capacity as such) will
make, use, prepare, authorize, approve, or refer to any written communication (as defined in Rule 405 under the Securities Act), required
to be filed with the SEC, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares hereunder.
(r) Sarbanes-Oxley
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies
and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions
and dispositions of the assets of the Company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit
the preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principles;
(iii) that receipts and expenditures of the Company are being made only in accordance with management’s and the Company’s
directors’ authorization; and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries
will maintain such controls and other procedures, including those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the
applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the periods specified in the SEC’s
rules and forms, including controls and procedures designed to ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its
principal executive officer and principal financial officer, or individuals performing similar functions, as appropriate to allow timely
decisions regarding required disclosure and to ensure that material information relating to the Company or the Subsidiaries is made known
to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
8. Representations
and Covenants of Spartan. Spartan represents and warrants that it is duly registered as a broker-dealer under FINRA, the Exchange
Act, and the applicable statutes and regulations of each state in which the Placement Shares will be offered and sold, except such states
in which Spartan is exempt from registration or such registration is not otherwise required. Spartan will continue, for the term of this
Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act, and the applicable statutes and regulations of each
state in which the Placement Shares will be offered and sold, except such states in which Spartan is exempt from registration or such
registration is not otherwise required, during the term of this Agreement. Spartan will comply with all applicable law and regulations
in connection with the Placement Shares, including Regulation M.
9. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including: (i) the
preparation, filing, including any fees required by the SEC, and printing of the Registration Statement (including financial statements
and exhibits) as originally filed and of each amendment and supplement thereto and each Free Writing Prospectus, in such number as Spartan
will reasonably deem necessary; (ii) the printing and delivery to Spartan of this Agreement and such other documents as may be required
in connection with the offering, purchase, sale, issuance, or delivery of the Placement Shares; (iii) the preparation, issuance,
and delivery of the certificates, if any, for the Placement Shares to Spartan, including any stock or other transfer taxes and any capital
duties, stamp duties, or other duties or taxes payable upon the sale, issuance, or delivery of the Placement Shares to Spartan; (iv) the
fees and disbursements of the counsel, accountants, and other advisors to the Company; (v) the fees and expenses of the transfer
agent and registrar for the Common Stock; (vi) the filing fees incident to any review by FINRA of the terms of the sale of the Placement
Shares; (vii) the fees and expenses incurred in connection with the listing of the Placement Shares on the Exchange; and (vii) the
fees and expenses of Spartan’s legal counsel in the amount of $75,000. In addition, the Company will pay fees to Spartan’s
counsel in connection with each quarterly and annual bring-down required hereunder not to exceed $5,000 for each quarterly bringdown and
$7,500 for each annual bringdown.
17
10. Conditions
to Spartan’s Obligations. The obligations of Spartan hereunder respecting a Placement will be subject to the continuing accuracy
and completeness of the representations and warranties made by the Company herein, to the due performance by the Company of its obligations
hereunder, to the completion by Spartan of a due diligence review satisfactory to it in its reasonable judgment, and to the continuing
satisfaction (or waiver by Spartan in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement will have become effective and will be available for the sale of all Placement Shares
contemplated to be issued by any Placement Notice.
(b) No
Material Notices. None of the following events will have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the SEC or any other federal or state governmental authority during the period of effectiveness of the
Registration Statement the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company
of any notification respecting the suspension of the qualification or exemption from qualification of any of the Placement Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that requires the making of any changes in the Registration Statement, the Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any materially 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 Prospectus, it will not contain any materially
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.
(c) No
Misstatement or Material Omission. Spartan will not have advised the Company that the Registration Statement or Prospectus, or any
amendment or supplement thereto, contains an untrue statement of fact that in Spartan’s reasonable opinion is material, or omits
to state a fact that in Spartan’s opinion is material and is required to be stated therein or is necessary to make the statements
therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the SEC, there will not
have been any material adverse change, on a consolidated basis, in the authorized capital stock of the Company or any Material Adverse
Effect, or any development that could reasonably be expected to cause a Material Adverse Effect.
(e) Legal
Opinion. Spartan will have received the opinions of Company Counsel required to be delivered pursuant to Section 7(m) on or before
the date on which such delivery of such opinions is required pursuant to Section 7(m).
(f) Comfort
Letters. Spartan will have received the Comfort Letters required to be delivered pursuant Section 7(n) on or before the date on which
such delivery of such letter is required pursuant to Section 7(n).
(g) Representation
Certificate. Spartan will have received the certificate required to be delivered pursuant to Section 7(l) on or before the date on
which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Common Stock will not have been suspended on the Exchange, and the Common Stock will not have been delisted
from the Exchange.
18
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company will have
furnished to Spartan such appropriate further information, certificates, and documents as Spartan may reasonably request and that are
usually and customarily furnished by an issuer of securities in connection with a securities offering. All such opinions, certificates,
letters, and other documents will be in compliance with the provisions hereof. The Company will furnish Spartan with such conformed copies
of such opinions, certificates, letters, and other documents as Spartan will reasonably request.
(j) Securities
Act Filings Made. All filings with the SEC required by Rule 424 under the Securities Act to have been filed prior to the issuance
of any Placement Notice hereunder will have been made within the applicable period prescribed for such filing by Rule 424.
(k) Approval
for Listing. The Placement Shares will either have been approved for listing on the Exchange, or the Company will have filed a Supplemental
Listing Application for listing of the Placement Shares on the Exchange at, or prior to, the issuance of any Placement Notice.
(l) No
Termination Event. No event will have occurred that would permit Spartan to terminate this Agreement pursuant to Section 13(a)(ii).
11. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless Spartan, its partners, members, directors, officers, employees,
and agents and each Person, if any, who controls Spartan within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage, and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that any such settlement is effected with the written consent of the Company, which consent will not unreasonably be delayed or withheld;
and
(iii) against
any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however,
that this indemnity agreement will not apply to any loss, liability, claim, damage, or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written information
furnished to the Company by Spartan expressly for use in the Registration Statement (or any amendment thereto), or in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Spartan
Indemnification. Spartan agrees to indemnify and hold harmless the Company and its directors and each officer of the Company who signed
the Registration Statement, and each Person, if any, that: (i) controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act; or (ii) is controlled by or is under common control with the Company against any and all loss,
liability, claim, damage, and expense described in the indemnity contained in Section 11(c), as incurred, but only respecting untrue statements
or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto), the Prospectus
(or any amendment or supplement thereto) or any Free Writing Prospectus in reliance upon and in conformity with information furnished
to the Company in writing by Spartan expressly for use therein.
19
(c) Procedure.
(i) Any
party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section
11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party will not relieve the indemnifying party from: (1) any liability that it might have to any indemnified
party otherwise than under this Section 11; and (2) any liability that it may have to any indemnified party under the foregoing provision
of this Section 11 unless, and only to the extent that, such omission results in the forfeiture or material impairment of substantive
rights or defenses by the indemnifying party.
(ii) If
any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified
party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense.
(iii) The
indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless: (1) the employment of counsel by the indemnified party has been authorized
in writing by the indemnifying party; (2) the indemnified party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying
party; (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on
behalf of the indemnified party); or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements
and other charges of counsel will be at the expense of the indemnifying party or parties.
(iv) It
is understood that the indemnifying party or parties will not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than one separate firm admitted to practice in such jurisdiction
at any one time for all such indemnified party or parties. All such fees, disbursements, and other charges will be reimbursed by the indemnifying
party promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges in reasonable
detail.
(v) An
indemnifying party will not, in any event, be liable for any settlement of any action or claim effected without its written consent. No
indemnifying party will, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, or proceeding relating to the matters contemplated by this Section 11 (whether
or not any indemnified party is a party thereto), unless such settlement, compromise or consent: (i) includes an unconditional release
of each indemnified party from all liability arising out of such litigation, investigation, proceeding, or claim; and (ii) does not
include a statement as to or an admission of fault, culpability, or a failure to act by or on behalf of any indemnified party.
20
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company or Spartan,
the Company and Spartan will contribute to the total losses, claims, liabilities, expenses, and damages (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the Company from Persons other than Spartan, such as Persons that
control the Company within the meaning of the Securities Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company and Spartan may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the one hand, and Spartan, on the other hand. The relative benefits received
by the Company, on the one hand, and Spartan, on the other hand, will be deemed to be in the same proportion as the total net proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by Spartan
(before deducting expenses) from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of contribution will be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one
hand, and Spartan, on the other hand, respecting the statements or omission that resulted in such loss, claim, liability, expense or damage,
or action in respect thereof, as well as any other relevant equitable considerations respecting such offering. Such relative fault will
be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company or Spartan, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and Spartan agree that
it would not be just and equitable if contributions pursuant to this Section 11(d) were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above
in this Section 11(d) will be deemed to include, for the purpose of this Section 11(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section
11(c) hereof. Notwithstanding the foregoing provisions of this Section 11(d), Spartan will not be required to contribute any amount in
excess of the commissions received by it under this Agreement and no Person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 11(d), any Person who controls a party to this Agreement within the meaning of the Securities Act, and any
officers, directors, partners, employees or agents of Spartan, will have the same rights to contribution as that party, and each officer
and director of the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in
each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made under this Section 11(d), will notify any such party or parties
from whom contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may
be sought from any other obligation it or they may have under this Section 11(d) except to the extent that the failure to so notify such
other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of Section 11(c) hereof, no party will be liable for contribution respecting any action or
claim settled without its written consent if such consent is required pursuant to Section 11(c) hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement and all representations
and warranties of the Company herein or in certificates delivered pursuant hereto will survive, as of their respective dates, regardless
of: (a) any investigation made by or on behalf of Spartan, any controlling Persons, or the Company (or any of their respective officers,
directors, or controlling Persons); (b) delivery and acceptance of the Placement Shares and payment therefor; or (c) any termination
of this Agreement.
21
13. Termination.
(a) Termination
by Spartan.
(i) Spartan
will have the right, by giving 10 days’ notice as hereinafter specified, to terminate this Agreement in its sole discretion at any
time after the date of this Agreement.
(ii) Spartan
may terminate this Agreement, by notice to the Company, as hereinafter specified at any time: (1) if there has been, since the time
of execution of this Agreement or since the date as of which information is given in the Prospectus, any Material Adverse Effect, or any
development that has occurred that is reasonably likely to have a Material Adverse Effect has occurred or in the sole judgment of Spartan
makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares; (2) if
there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the
judgment of Spartan, impracticable or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement
Shares; (3) if trading in the Common Stock has been suspended or limited by the SEC or the Exchange, or if trading generally on the
Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange; (4) if any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter market will have occurred and be continuing; (5) if a
major disruption of securities settlements or clearance services in the United States will have occurred and be continuing; (6) if
a banking moratorium has been declared by either U.S. Federal or New York authorities; or (7) if the Company is in material breach of
this Agreement. Any such termination will be without liability of any party to any other party except that the provisions of Section 9
(Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery),
Section 18 (Applicable Law; Waiver of Jury Trial), and Section 19 (Consent to Jurisdiction) hereof will remain in full force and effect
notwithstanding such termination. If Spartan elects to terminate this Agreement as provided in this Section 13(a)(ii), Spartan will provide
the required notice as specified in Section 14 (Notices).
(b) Termination
by Company.
(i) The
Company will have the right, by giving 10 days’ notice as hereinafter specified, to terminate this Agreement in its sole discretion
at any time after the date of this Agreement.
(ii) If
Spartan declines any commercially reasonable placement notice pursuant to Section 2(a) of this Agreement, then the Company will have the
right to terminate this Agreement by giving written notice of termination to Spartan. Any such termination will be effective immediately
upon the delivery of a termination notice by the Company to Spartan.
(iii) Any
termination pursuant to Section 13(b) will be without liability of any party to any other party except that the provisions of Section
9, Section 11, Section 12, Section 18, and Section 19 hereof will remain in full force and effect notwithstanding such termination.
(c) Automatic
Termination. Unless earlier terminated pursuant to this Section 13, this Agreement will automatically terminate upon the earlier to occur
of: (i) the two-year anniversary of the date hereof; or (ii) the issuance and sale of all of the Placement Shares through Spartan
on the terms and subject to the conditions set forth herein, except that, in either such case, the provisions of Section 9, Section 11,
Section 12, Section 18 and Section 19 hereof will remain in full force and effect notwithstanding such termination.
(d) Liability
after Termination. This Agreement will remain in full force and effect unless terminated pursuant to Sections 13(a), (b), or (c) above
or otherwise by mutual agreement of the parties. Upon termination of this Agreement, the Company will not have any liability to Spartan
for any discount, commission, or other compensation respecting any Placement Shares not otherwise sold by Spartan under this Agreement.
22
(e) Termination
Date. Any termination of this Agreement will be effective on the date specified in such notice of termination; provided, however,
that such termination will not be effective until the close of business on the date of receipt of such notice by Spartan or the Company,
as the case may be. If such termination will occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
will settle in accordance with the provisions of this Agreement.
14. Notices.
(a) Nonelectronic
Notice. All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms
of this Agreement will be in writing, unless otherwise specified, and if sent to Spartan, will be delivered to:
Spartan Capital Securities, LLC
Attention: Eric Flesche, President
45 Broadway – 19th Floor
New York, NY 10006
with a copy to:
Michael Best &
Friedrich LLP
Attention: Betsy
Voter
650 South Main
Street, Suite 500
Salt Lake City, UT 84101
and if to the Company,
will be delivered to:
Hyperscale Data,
Inc.
Attention: William
B. Horne, Chief Executive Officer
11411 Southern
Highlands Pkwy, Suite 190
Las Vegas, NV 89141
with a copy (which
shall not constitute notice) to:
Hyperscale Data,
Inc.
Attention: Henry
Nisser, President
122 East 42nd Street,
50th Floor
New York, NY 10168
and
Olshan Frome Wolosky
LLP
Attention: Kenneth
A. Schlesinger, Esq.
1325 Avenue of
the Americas, 15th Floor
New York, NY 10019
Each such notice or other communication
will be deemed given: (i) when delivered personally on or before 4:30 p.m., New York City time, on a Business Day or, if such
day is not a Business Day, on the next succeeding Business Day; or (ii) on the next Business Day after timely delivery to a nationally
recognized overnight courier. For purposes of this Agreement, “Business Day” will mean any day on which the Exchange
and commercial banks in the City of New York are open for business.
23
(b) Electronic
Notice. An electronic communication (“Electronic Notice”) will be deemed written notice for purposes of this Section
14 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice will be deemed received
at the time the party sending Electronic Notice receives confirmation of receipt by the receiving party. Any party receiving Electronic
Notice may request and will be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”),
which will be sent to the requesting party within 10 days of receipt of the written request for Nonelectronic Notice.
(c) Change
of Address. Each party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice
of a new address for such purpose.
15. Successors
and Assigns. This Agreement will inure to the benefit of and be binding upon the Company and Spartan and their respective successors
and the affiliates, controlling persons, partners, members, officers, directors, employees, and agents referred to in Section 11 hereof.
References to any of the parties contained in this Agreement will be deemed to include the successors and permitted assigns of such party.
Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent
of the other party.
16. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement will be adjusted to
take into account any share consolidation, stock split, stock dividend, corporate domestication or similar event effected respecting the
Placement Shares.
17. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices issued
pursuant hereto), by and between the Company and Spartan constitutes the entire agreement of the parties respecting the subject matter
hereof and thereof and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties
hereto with regard to the subject matter hereof and thereof. Neither this Agreement nor any term hereof may be amended except pursuant
to a written instrument executed by the Company and Spartan. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal, or unenforceable as written by a court of competent jurisdiction,
then such provision will be given full force and effect to the fullest possible extent that it is valid, legal, and enforceable, and the
remainder of the terms and provisions herein will be construed as if such invalid, illegal, or unenforceable term or provision was not
contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof will
be in accordance with the intent of the parties as reflected in this Agreement.
18. APPLICABLE
LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN
THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE WILL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN WILL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW.
24
20. Use
of Information. Spartan may not use any information gained in connection with this Agreement and the transactions contemplated by
this Agreement, including due diligence, to advise any party respecting transactions not expressly approved by the Company. Spartan acknowledges
that any information gained in connection with this Agreement and the transactions contemplated by this Agreement are subject to confidentiality
and other restrictions pursuant to the Confidentiality Agreement and agrees to abide by the terms of the Confidentiality Agreement.
21. Counterparts.
This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission.
22. Effect
of Headings. The section and exhibit headings herein are for convenience only and will not affect the construction hereof.
23. Permitted
Free Writing Prospectuses. The Company represents, warrants, and agrees that, unless it obtains the prior consent of Spartan, and
Spartan represents, warrants and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any
offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the SEC. Any such free writing prospectus consented
to by Spartan or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer
free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable
to any Permitted Free Writing Prospectus, including timely filing with the SEC where required, legending, and recordkeeping. For the purposes
of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit B hereto are Permitted
Free Writing Prospectuses.
24. Absence
of Fiduciary Relationship. The Company acknowledges and agrees as follows:
(a) Sales
Agent. Spartan is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each
transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between
the Company or any of its respective affiliates, stockholders (or other equity holders), creditors, or employees or any other party, on
the one hand, and Spartan, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether or not Spartan has advised or is advising the Company on other matters, and Spartan has no obligation to the Company
respecting the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement.
(b) Business
Acumen. The Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the
transactions contemplated by this Agreement.
(c) Advice.
Spartan has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement, and
the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate.
(d) Conflicts.
The Company is aware that Spartan and its affiliates are engaged in a broad range of transactions that may involve interests that differ
from those of the Company and Spartan has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship or otherwise; provided that Spartan hereby agrees not to engage in any such transaction that would cause
its interests to be in direct conflict with the best interests of the Company.
(e) Waiver.
The Company waives, to the fullest extent permitted by law, any claims it may have against Spartan for breach of fiduciary duty or alleged
breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that Spartan will not have any
liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person
asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect
of Spartan’s obligations under this Agreement and to keep information provided by the Company to Spartan and Spartan’s counsel
confidential to the extent not otherwise publicly available.
25
25. Definitions
and References.
(a) Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
(i) “Applicable
Time” means: (1) each Representation Date; and (2) the time of each sale of any Placement Shares pursuant to this
Agreement.
(ii) “Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the
Placement Shares.
(ii) “Rule
158,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,”
“Rule 424,” “Rule 424(b),” “Rule 430A,” “Rule 430B,”
“Rule 433,” and “Rule 501” refer to such rules under the Securities Act Regulations.
(b) References.
All references in this Agreement:
(i) to
financial statements and schedules and other information that is “contained,” “included,” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) will be deemed to mean and include all such
financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and
(ii) to
the Registration Statement, the Prospectus, or any amendment or supplement to any of the foregoing will be deemed to include the copy
filed with the SEC pursuant to EDGAR;
(iii) to
any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required
to be filed with the SEC) will be deemed to include the copy thereof filed with the SEC pursuant to EDGAR; and
(iv) to
“supplements” to the Prospectus will include any supplements, “wrappers,” or similar materials prepared in connection
with any offering, sale, or private placement of any Placement Shares by Spartan outside of the United States.
[Signature Page Follows]
26
If the foregoing correctly
sets forth the understanding between the Company and Spartan, please so indicate in the space provided below for that purpose, whereupon
this letter will constitute a binding agreement between the Company and Spartan.
Very truly yours,
HYPERSCALE DATA, INC.
By:
Name:
Henry Nisser
Title:
President
ACCEPTED as of the date first-above
written:
SPARTAN CAPITAL SECURITIES, LLC
By:
Name:
Eric Flesche
Title:
President
SCHEDULE 1
_________________________________
Form of Placement Notice
_________________________________
From:
Hyperscale Data, Inc.
To:
Spartan Capital Securities, LLC
Attention: Eric Flesche, President
Subject:
At-The-Market Issuance—Placement Notice
Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the At-The-Market Issuance Sales Agreement between Hyperscale Data, Inc., a Delaware corporation
(the “Company”) and Spartan Capital Securities, LLC (“Spartan”), dated [closing date], the Company
hereby requests that Spartan sell up to ____________ of the Company’s Common Stock, par value $0.001 per share, at a minimum market
price of $_______ per share, during the period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
__________________________
Compensation
__________________________
The Company will pay to Spartan
in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the gross proceeds from each sale of
Placement Shares, and reimburse reasonable out-of-pocket expenses, including but not limited to x-clearing fees. Spartan will also be
entitled to payment of expenses described in Section 9 of this Agreement.
SCHEDULE 3
__________________________
Notice Parties
__________________________
The Company:
William B. Horne, Chief Executive
Officer (Will@ault.com)
Milton C. Ault, III, Executive
Chairman (Todd@ault.com)
Henry Nisser, President &
General Counsel (Henry@ault.com)
David Katzoff, SVP of Finance
(David@ault.com)
Spartan:
Eric Flesche, President (eflesche@spartancapital.com)
Williams Coons (wcoons@spartancapital.com)
Betsy Voter, Counsel (btvoter@michaelbest.com)
Exhibit A
Form of Representation Date
Certificate
This Officers Certificate
(this “Certificate”) is executed and delivered in connection with Section 7(l) of the At-The-Market Issuance Sales
Agreement (the “Agreement”), dated [closing date], and entered into between Hyperscale Data, Inc. (the “Company”),
and Spartan Capital Securities, LLC. All capitalized terms used but not defined herein will have the meanings given to such terms in the
Agreement.
The undersigned, a duly appointed
and authorized officer of the Company, having made reasonable inquiries to establish the accuracy of the statements below and having been
authorized by the Company to execute this certificate on behalf of the Company, hereby certifies as follows:
1. As
of the date of this Certificate: (a) the Registration Statement does 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 not misleading; (b) neither
the Registration Statement nor the Prospectus contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading; and (c) no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to
make the statements therein not untrue or misleading for (a) and (b) to be true.
2. Each
of the representations and warranties of the Company contained in the Agreement were, when originally made, and are, as of the date of
this Certificate, true and correct in all material respects.
3. Except
as waived by Spartan in writing, each of the covenants required to be performed by the Company in the Agreement on or prior to the date
of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement, has been
duly, timely and fully performed in all material respects and each condition required to be complied with by the Company on or prior to
the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement has
been duly, timely and fully complied with in all material respects.
4. Subsequent
to the date of the most recent financial statements in the Prospectus, and except as described in the Prospectus, including Incorporated
Documents, there has been no Material Adverse Effect.
5. No
stop order suspending the effectiveness of: (a) the Registration Statement or of any part thereof; or (b) the qualification
or registration of the Placement Shares under the state securities or securities laws of any jurisdiction has been issued, and, to the
Company’s knowledge, no proceedings for that purpose have been instituted or are pending or threatened by any securities or other
governmental authority (including the SEC).
The undersigned has executed
this Officer’s Certificate as of the date first written above.
HYPERSCALE DATA, INC.
By:
Name:
Henry Nisser
Title:
President
Exhibit B
Permitted Free Writing Prospectuses
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: ex99_1.htm · Sequence: 4
Exhibit 99.1
Hyperscale Data Announces “At-the-Market”
Offering of Common Stock
LAS VEGAS--(BUSINESS WIRE) – June 18, 2026
– Hyperscale Data, Inc. (NYSE American: GPUS),
an artificial intelligence (“AI”) data center company anchored by Bitcoin (“Hyperscale Data” or
the “Company”), announced today that it has established an “at-the-market” equity offering program (the
“Offering”) under which it may sell, from time to time, shares of its common stock for aggregate gross proceeds of
up to $300 million. The shares of common stock will be offered through Spartan Capital Securities, LLC, which will act in its capacity
as sales agent (the “Agent”).
Pursuant to a sales agreement with the Agent,
sales of shares of the Company's common stock may be made in transactions that are deemed to be “at-the-market” offerings,
including sales made by means of ordinary brokers' transactions on the NYSE American or otherwise at market prices prevailing at the time
of sale or as agreed to with the Agent.
The Company intends to use a majority of the net
proceeds from this offering, if any, to further develop its Michigan and Montana data facilities, to acquire more Bitcoin and to purchase
precious metals, including gold, silver and/or copper. The Company also intends to use a smaller amount of the proceeds for working capital
and general corporate purposes, which may include the repayment, refinancing, redemption or repurchase of future indebtedness or capital
stock. As of the date hereof, the Company cannot predict with certainty all of the particular uses for the net proceeds from this offering,
if any. As a result, Hyperscale Data’s management will have broad discretion regarding the timing and application of the net proceeds
from this offering.
The shares of common stock described above are
being offered pursuant to a shelf registration statement (File No. 333-291595), which became effective on December 11, 2025. Such shares
of common stock may be offered only by means of a prospectus, including a prospectus supplement, forming a part of the effective registration
statement. Before making an investment in these securities, potential investors should read the prospectus supplement and the accompanying
prospectus for more complete information about the Company and the Offering. Potential investors may obtain these documents for free by
visiting EDGAR on the U.S. Securities and Exchange Commission's website at www.sec.gov. Alternatively, potential investors may contact
the Agent, which will arrange to send them these documents: Spartan Capital Securities, LLC, Attention: Eric Flesche, President, 45 Broadway,
19th Floor, New York, NY 10006, telephone: (212) 293-0123, eflesche@spartancapital.com.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities, in any state or other jurisdiction in
which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or other jurisdiction.
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, 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, social gaming platform, equipment rental services, defense/aerospace, industrial, automotive, medical/biopharma and hotel operations.
In addition, ACG is actively engaged in private credit and structured finance through 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
EX-99.2 — EXHIBIT 99.2
EX-99.2
Filename: ex99_2.htm · Sequence: 5
Exhibit 99.2
Hyperscale Data
Declares Monthly Cash Dividend of $0.2708333 per Share of 13.00% Series D Cumulative Redeemable Perpetual Preferred Stock
Hyperscale Data
Also Declares Monthly Cash Dividend of $0.20833 per Share of 10.00% Series E Cumulative Redeemable Perpetual Preferred Stock
LAS VEGAS--(PR NEWSWIRE) – June 18, 2026
– Hyperscale Data, Inc. (NYSE American: GPUS), an artificial intelligence (“AI”)
data center company anchored by Bitcoin (“Hyperscale Data” or the “Company”), today announced that
its Board of Directors (the “Board”) has declared a monthly cash dividend of $0.2708333 per share of the Company’s
outstanding 13.00% Series D Cumulative Redeemable Perpetual Preferred Stock.
Link to NYSE quote for the Company’s 13.00%
Series D Cumulative Redeemable Perpetual Preferred Stock: https://www.nyse.com/quote/XASE:GPUSpD
The Company also announced today that the Board
has declared a monthly cash dividend of $0.20833 per share of the Company’s outstanding 10.00% Series E Cumulative Redeemable Perpetual
Preferred Stock.
The record date for both dividends is June 30,
2026, and the payment date is Friday, July 10, 2026.
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, medical/biopharma and hotel operations. In addition, ACG is actively engaged
in private credit and structured finance through 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
GRAPHIC
GRAPHIC
Filename: hyperscaledata_logo.jpg · Sequence: 10
Binary file (23550 bytes)
Download hyperscaledata_logo.jpg
GRAPHIC
GRAPHIC
Filename: olshan_footer.jpg · Sequence: 11
Binary file (5478 bytes)
Download olshan_footer.jpg
GRAPHIC
GRAPHIC
Filename: olshanaddress_header.jpg · Sequence: 12
Binary file (10740 bytes)
Download olshanaddress_header.jpg
GRAPHIC
GRAPHIC
Filename: olshanlogo_header.jpg · Sequence: 13
Binary file (7594 bytes)
Download olshanlogo_header.jpg
GRAPHIC
GRAPHIC
Filename: olshanwebaddy_footer.jpg · Sequence: 14
Binary file (5890 bytes)
Download olshanwebaddy_footer.jpg
XML — IDEA: XBRL DOCUMENT
XML
Filename: R1.htm · Sequence: 16
v3.26.1
Cover
Jun. 18, 2026
Document Type
8-K
Amendment Flag
false
Document Period End Date
Jun. 18, 2026
Entity File Number
001-12711
Entity Registrant Name
HYPERSCALE DATA, INC.
Entity Central Index Key
0000896493
Entity Tax Identification Number
94-1721931
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
11411 Southern Highlands Parkway
Entity Address, Address Line Two
Suite 190
Entity Address, City or Town
Las Vegas
Entity Address, State or Province
NV
Entity Address, Postal Zip Code
89141
City Area Code
(949)
Local Phone Number
444-5464
Written Communications
false
Soliciting Material
false
Pre-commencement Tender Offer
false
Pre-commencement Issuer Tender Offer
false
Entity Emerging Growth Company
false
Class A Common Stock, $0.001 par value
Title of 12(b) Security
Class A Common Stock, $0.001 par value
Trading Symbol
GPUS
Security Exchange Name
NYSE
13.00% Series D Cumulative Redeemable Perpetual Preferred Stock, par value $0.001 per share
Title of 12(b) Security
13.00% Series D Cumulative Redeemable Perpetual Preferred Stock, par value $0.001 per share
Trading Symbol
GPUS PD
Security Exchange Name
NYSE
X
- Definition
Boolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
No definition available.
+ Details
Name:
dei_AmendmentFlag
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Area code of city
+ References
No definition available.
+ Details
Name:
dei_CityAreaCode
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
For the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
No definition available.
+ Details
Name:
dei_DocumentPeriodEndDate
Namespace Prefix:
dei_
Data Type:
xbrli:dateItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
No definition available.
+ Details
Name:
dei_DocumentType
Namespace Prefix:
dei_
Data Type:
dei:submissionTypeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 1 such as Attn, Building Name, Street Name
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine1
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 2 such as Street or Suite number
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine2
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the City or Town
+ References
No definition available.
+ Details
Name:
dei_EntityAddressCityOrTown
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Code for the postal or zip code
+ References
No definition available.
+ Details
Name:
dei_EntityAddressPostalZipCode
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the state or province.
+ References
No definition available.
+ Details
Name:
dei_EntityAddressStateOrProvince
Namespace Prefix:
dei_
Data Type:
dei:stateOrProvinceItemType
Balance Type:
na
Period Type:
duration
X
- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityCentralIndexKey
Namespace Prefix:
dei_
Data Type:
dei:centralIndexKeyItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Indicate if registrant meets the emerging growth company criteria.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityEmergingGrowthCompany
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
No definition available.
+ Details
Name:
dei_EntityFileNumber
Namespace Prefix:
dei_
Data Type:
dei:fileNumberItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Two-character EDGAR code representing the state or country of incorporation.
+ References
No definition available.
+ Details
Name:
dei_EntityIncorporationStateCountryCode
Namespace Prefix:
dei_
Data Type:
dei:edgarStateCountryItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityRegistrantName
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityTaxIdentificationNumber
Namespace Prefix:
dei_
Data Type:
dei:employerIdItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Local phone number for entity.
+ References
No definition available.
+ Details
Name:
dei_LocalPhoneNumber
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
+ Details
Name:
dei_PreCommencementIssuerTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
+ Details
Name:
dei_PreCommencementTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
+ Details
Name:
dei_Security12bTitle
Namespace Prefix:
dei_
Data Type:
dei:securityTitleItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
+ Details
Name:
dei_SecurityExchangeName
Namespace Prefix:
dei_
Data Type:
dei:edgarExchangeCodeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
dei_SolicitingMaterial
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
dei_TradingSymbol
Namespace Prefix:
dei_
Data Type:
dei:tradingSymbolItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Details
Name:
us-gaap_StatementClassOfStockAxis=GPUS_ClassCommonStock0.001ParValueMember
Namespace Prefix:
Data Type:
na
Balance Type:
Period Type:
X
- Details
Name:
us-gaap_StatementClassOfStockAxis=GPUS_Sec13.00SeriesDCumulativeRedeemablePerpetualPreferredStockParValue0.001PerShareMember
Namespace Prefix:
Data Type:
na
Balance Type:
Period Type: