展品10.1
執行版本
債務償還和交易所協議
本債務償還和交換協議 （這個”協議”) 自 2024 年 10 月 25 日起生效（”生效日期”) 在 Gryphon 中間 特拉華州的一家公司 Digital Mining, Inc.（”公司”）、特拉華州的一家有限責任公司Gryphon Opco I LLC，一家完全是間接有限責任公司 本公司擁有的子公司（”借款人”），特拉華州的一家公司 Ivy Crypto, Inc.（”常春藤”）， 公司的直接全資子公司Gryphon Opco II LLC，一家直接全資子公司（”鷹頭鷹二世” 與公司、借款人、Ivy、ACH和ACAE一起，統稱爲”公司派對”）和安克雷奇 Lending CA, LLC（”貸款人”).
鑑於借款人和貸款人 作爲《修訂後的設備貸款和安全協議貸款協議》和《修訂後的本票》簽署方，日期爲2023年3月29日（統稱爲「貸款協議」）。 本合同附表中附有《貸款協議》，如有引用但未在此處另行定義的資本化術語應按照適用的貸款協議規定解釋；貸款協議，”和 附件中附有 附錄 A”。如未另行定義，本文件中使用但未加說明的資本化術語應按照貸款協議規定的含義解釋；
鑑於根據貸款協議中包含的條款和條件，出借人已向借款人提供了某些貸款貸款”);
鑑於截至本協議簽訂日期，貸款的未償本金總額爲304比特幣（“37,928,768.53元淨有形資產完成條件
鑑於, the Borrower and the Lender wish to exchange the Current Loan Balance under the Loans as follows: (a) for 8,287,984 shares of common stock, par value $0.0001 per share, of the Company (the “普通股”或“公司股份”), at an exchange rate of $1.10 per share (the “購買股票價格”), with a fraction of a Share rounded down to the next whole share; (b) a Loan, Guaranty and Security Agreement (the “新貸款協議”)基本上與此附件的形式大致相同 展覽B ，總本金金額爲$5,000,000（“所有板塊”）；（c）一項小額認股權協議（ “Penny Warrants”）基本上與此附件的形式大致相同 展覽 C 允許貸方（或其指定人） 以每股$0.01的價格從公司購買3,530,198股普通股，和（d）1.50美元的行使價格 認股權協議（“1.50美元認股權”）實質上與此附件中的形式一致 展品D 允許 貸方（或其指定人）以每股1.50美元的價格從公司購買2,000,000股普通股。
servicenow, 因此經過充分的考慮和有價值的對價，本各方特此確認已收到，本各方同意如下:
| 1. | 發行還款股份和認股權證，董事任命和執行新貸款協議. |
| (a) | 在執行和交付本協議的同時，公司應向貸款人簽發 共有8,287,984股普通股（”還款股份”）。不遲於第二（2）個交易日 在本協議發佈之日之後，公司應向貸款人簽發並交付一份證明或賬面記賬目對賬單，以證明 還款股份。任何證明還款份額的證書、證書、賬面記賬目報表或報表均應 受1933年《美國證券法》（經修訂的”）下限制轉讓的傳說或傳說的約束證券 法案”）直到根據證券下的有效註冊聲明出售還款股份爲止 《證券法》下的法案或第 144 條 (”第 144 條規則”). |
| (b) | 與本協議的執行和交付同時，公司應向借款人發行Penny認購權，以每股0.01美元的價格購買公司的3,530,198股普通股。 |
| (c) | 與本協議的執行和交付同時，公司應該向借款人發行1.50美元的認股權證，以每股1.50美元的價格購買公司2,000,000股普通股。 |
| (d) | 與本協議的執行和交付同時，公司應導致公司 董事會（「公司董事會」）根據公司的組織文件採取一切適當行動， 擴大公司董事會的規模一個董事，並指定借款人指定的個人（「借款人指定」） 加入公司董事會作爲一個三類董事。如果借款人指定辭職或以其他方式被 公司董事會罷免，那麼（i）公司董事會不得縮減公司董事會規模以消除 由此而造成的空缺，（ii）借款人有權提名替補借款人指定，以及（iii） 在此類提名之後，公司及公司董事會或相關委員會應根據公司的組織文件 採取一切適當行動來填補由此而造成的空缺。在新貸款未償還之際， 如果借款人指定的任期將在公司股東的下一次年度股東大會上屆滿， 則公司應提名該借款人指定以在該會議上由股東重新選舉。在新貸款未償還之際， 如果公司董事會沒有借款人指定，視爲公司未履行本協議項下的義務的違約事件。 |
| (e) | 與本協議的簽署和交付同時，公司各方和借款人（或其指定人）將簽署新貸款協議（以及所有其他相關交易文件）。 |
| (f) | 公司各方和借款人進一步承認並同意，(i) 根據上述條款 (a)，(b) 和 (c) 分別規定的向借款人發放替換股份、一美分認股權證和1.50美元認股權證，並由公司各方和借款人(或其指定人)簽署和交付新貸款協議(及所有其他交易文件)，將完全滿足借款人根據貸款協議(及所有輔助文件和相關工具)和貸款向借款人的義務，(ii) 一旦發放替換股、一美分認股權證和1.50美元認股權證以及簽署和交付新貸款協議，借款人對借款人的所有義務根據貸款協議(及所有輔助文件和相關工具)和貸款應被視爲已徹底履行並償還，該貸款協議(及所有輔助文件和相關工具)和貸款應被視爲已全部終止和註銷，但新貸款應當繼續未償。 |
| 2. | 公司股東大會. |
| (a) | 到2025年9月30日之前，公司應在適用法律下采取一切必要行動，以召開、通知並主辦其股東年會（該會議稱爲“公司股東大會”），目的包括但不限於尋求借方在公司普通股中持有超過20%的權利批准，包括行使低價權證、1.50美元權證和換股特權（定義見新貸款協議）（「公司股東事項」）。 |
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| (b) | 如果公司股東事項的批准未能在該股東會議上獲得，公司將尋求在公司的下一次股東年會上獲得這樣的批准，或者如果在初始公司股東會議後的六（6）個月內未安排舉行該股東年會，則在公司股東會議後的六（6）個月內召開一次公司股東特別會議。 公司將召開股東年會或股東特別會議，屆時將徵求公司股東對公司股東事項的批准，並至少在每六（6）個月內至少進行一次，直到公司獲得公司股東事項的批准。 |
| (c) | 公司同意：（i）公司董事會應推薦公司普通股股東投票批准公司股東事項，並應力求在第2.2（b）節所規定的時間框架內徵詢並獲得此類批准；（ii）適用的代理聲明應包含一項聲明，即公司董事會建議公司股東投票批准公司股東事項。 |
| 3. | 貸方的陳述和保證貸方向公司方陳述和保證 |
| (a) | 組織、授權和強制執行出借人是一家有限責任公司，根據其設立法律合法存在並且合法持續經營。出借人有充分的權力和權威進入本協議並完成本協議約定的交易。出借人通過所需的所有必要行動已經合法授權執行和交付本協議。本協議已經由出借人合法簽署，當由公司一方簽署和交付時，即構成出借人根據其條款可強制執行的有效約束義務，除非這種可強制性受到破產、無力清償、重組、接管、保護、延期執行或其他涉及債權人權利的法律影響的限制，或者特定履行、禁令救濟或其他衡平原則和一般衡平法院或法律程序中被視爲限制的效力。可強制執行例外情況”). |
| (b) | 政府同意與批准除非在此處另有規定，出借人執行、交付和履行本協議無需獲得任何政府當局的同意、批准、授權或其他命令，也無需採取任何行動、提交文件或通知。 |
| (c) | 證券法陳述出借人爲合格投資者（如證券法規501條下規定）並知曉償還股、便士認股權證和1.50美元認股權證的出售是依靠證券法下的定向增發豁免規定進行的，並且公司正在依賴出借人在本協議中陳述的真實性和準確性來判斷這些規定的適用性。出借人購買償還股、便士認股權證和1.50美元認股權證並非經由他人或公司以外的渠道徵求的。出借人購買償還股、便士認股權證和1.50美元認股權證是爲自身帳戶（而非他人帳戶）進行的，並非出於違反任何聯邦或州證券法或「藍天法」規定的分配，也非懷有目的進行違反證券法出售或分銷償還股、便士認股權證和1.50美元認股權證。出借人對財務和業務事項具有足夠的知識和經驗，能夠評估其在償還股、便士認股權證和1.50美元認股權證中投資的利弊和風險，並有能力承受該投資的經濟風險。出借人已有充分的機會進行，也已進行了他認爲必要的調查，並獲得和評估了使其能夠對此協議的簽署、交付和履行做出知情和明智決定所需的文件和信息。 |
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| (d) | 無經紀人放款人在本協議擬議的交易中，未保留、利用、或被代表，或以其他方式受到任何經紀人、配售代理、財務顧問或找頭的義務。 |
| (e) | 不進行一般性招攬. 貸款人並不是因為或隨著任何一般推銷或一般廣告的結果，而獲得償還股票、Penny warrants以及 1.50美元warrants，包括但不限於任何在報紙、雜誌或類似媒體中發表的廣告、文章、公告或其他通信，或在電視或廣播上播放，或 在任何研討會或會議中介紹，或在向證券交易委員會提交的登記聲明中出現（美國證券交易委員會”). |
| 4. | Representations and Warranties of the Company. Each of the Company Parties hereby represents and warrants to the Lender that: |
| (a) | Organization, Authorization and Enforcement. Such Company Party is duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Such Company Party has the full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by such Company Party and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of each such Company Party. This Agreement has been duly executed by such Company Party and, when executed and delivered by the Lender, will constitute the valid and binding obligation of each such Company Party enforceable against such Company Party in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions. Each of the Company and its Subsidiaries (as defined below) is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document (as defined below), (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. “Transaction Documents” means, individually and collectively, this Agreement and registration statement in respect to this Agreement or otherwise, the New Loan Agreement, the Penny Warrants and the $1.50 Warrants and, in each case, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder or thereunder. |
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| (b) | No Conflicts. The execution, delivery and performance of this Agreement by such Company Party and the consummation by such Company Party of the transactions contemplated hereby and each of the Transaction Documents do not and will not (i) conflict with or violate the certificate of incorporation, bylaws or other organizational documents of such Company Party, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument or other understanding to which such Company Party is a party or by which any property or asset of such Company Party is bound or affected, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which such Company Party is subject, or by which any property or asset of such Company Party is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably be expected to result in a material adverse effect upon the condition (financial or otherwise), earnings, business or business prospects, properties, operations or results of operations of the Company and its subsidiaries taken as a whole. |
| (c) | Governmental Consents and Approvals. The execution, delivery, and performance of this Agreement by such Company Party does not and will not require any consent, approval, authorization, or other order of, action by, filing with, or notification to, any governmental authority other than (i) any filings required under applicable securities laws, (ii) any filings required under the listing rules of any exchange on which the Common Stock is listed and (iii) any filings required under this Agreement (including the filing of a registration statement pursuant to Section 5 hereof). |
| (d) | Valid Issuance. The Repayment Shares have been duly authorized and, when issued in exchange for a portion of the Current Loan Balance in accordance with the terms of this Agreement, will be validly issued, fully paid, non-assessable and free of pre-emptive or similar rights. |
| (e) | SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, since February 9, 2024 (and the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal year-end audit adjustments. |
| (f) | General Solicitation; No Integration. Other than with respect to the Lender, neither the Company nor any other person or entity authorized by the Company to act on its behalf has engaged in a general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act) of investors with respect to offers or sales of the Repayment Shares. The Company has not, directly or indirectly, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which, to its knowledge, is or will be integrated with the Repayment Shares issued pursuant to this Agreement. |
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| (g) | Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest balance sheet included within the SEC Reports, except as disclosed in the SEC Reports, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the SEC and (C) liabilities incurred to finance the acquisition of equipment, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or affiliate, except pursuant to existing Company stock option or incentive plans. The Company does not have pending before the SEC any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement or in the SEC Reports, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that is required to be disclosed by the Company under applicable securities laws at the time this representation is made that has not been publicly disclosed at least 1 trading day prior to the date that this representation is made. |
| (h) | Subsidiaries. The Subsidiaries of the Company are set forth in the SEC Reports, the Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. |
| (i) | Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any of its subsidiaries or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”), which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Common Stock or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Except as set forth in the SEC Reports, neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. To the knowledge of the Company, there has not been, and there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company (in his or her capacity as such). The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. |
| (j) | Registration Rights. Except as disclosed in the SEC Reports, no person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary. |
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| (k) | Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration. Except as disclosed in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer. “Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing). |
| (l) | Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Stock in violation of Regulation M under the Exchange Act. |
| (m) | No Brokers. Such Company Party has not retained, utilized or been represented by, or otherwise become obligated to, any broker, placement agent, financial advisor or finder in connection with the transactions contemplated by this Agreement. |
| 5. | Registration Rights. |
| (a) | The Company agrees that it will: (i) file with the SEC, no later than 30 calendar days following the date of this Agreement, a registration statement on Form S-3, or, if the Company is not then eligible to register the Repayment Shares, the shares issuable upon exercise of the Penny Warrants, the shares issuable upon exercise of the $1.50 Warrants and the shares issuable upon conversion of the New Loan (together, the “Registrable Securities”) for resale on Form S-3, on another appropriate form in accordance with the Securities Act, to enable the resale of the Registrable Securities by the Lender in an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “Registration Statement”), (ii) to use its reasonable best efforts to cause the Registration Statement to become effective as soon as practicable after the filing thereof, and (iii) file with the SEC such amendments and supplements to the Registration Statement in compliance with applicable laws, the prospectus used in connection therewith and any document incorporated by reference therein as may be necessary to keep such Registration Statement current, effective and free from any material misstatement or omission to state a material fact until the earlier of (A) the date as of which the Lender may sell all of the Registrable Securities without restriction or limitation as to volume or manner sale under Rule 144 and (B) such time as all Registrable Securities acquired by the Lender hereunder have been sold; provided, however, that the Company’s obligations to include the Registrable Securities in the Registration Statement are contingent upon the Lender furnishing a completed and executed selling shareholder questionnaire in the form set forth as Exhibit E attached hereto (the “Seller Questionnaire”) to the Company regarding the Lender and the securities of the Company held by the Lender to effect the registration of the Registrable Securities. |
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| (b) | In the event (i) of any request by the SEC or any other federal, state or provincial governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to such Registration Statement or a related prospectus or for additional information; (ii) of the issuance by the SEC or any other federal, state or provincial governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) that the Company Board determines in good faith that it would be materially detrimental to the Company to maintain a Registration Statement at such time because it would require the disclosure of material nonpublic information the disclosure of which at the time is not in the best interests of the Company; then the Company shall deliver a certificate in writing to the Lender (the “Suspension Notice”) to the effect of the foregoing (provided that the Company will not disclose the content of any material non-public information to the Lender in any Suspension Notice) and, upon receipt of such Suspension Notice, the Lender will refrain from selling any Registrable Securities pursuant to the Registration Statement (a “Suspension”) until the Lender’s receipt of copies of a supplemented or amended prospectus prepared and filed by the Company, such receipt shall be deemed effective hereunder if such supplemented or amended prospectus is made publicly available on the Company’s website or at www.sec.gov, or until it is advised in writing by the Company that the current prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in any such prospectus, such receipt shall be deemed effective hereunder if such additional or supplemental filings are made publicly available on the Company’s website or at www.sec.gov. The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and in the event of any Suspension, the Company will use its commercially reasonable efforts to cause the use of the prospectus so suspended to be resumed as soon as reasonably practicable after the delivery of a Suspension Notice. The Company shall have the right to defer the filing of or suspend the use of the Registration Statement pursuant to (iv) above for a period of not more than sixty (60) days from the date the Company notifies the Lender of such deferral or suspension; provided that the Company shall not exercise such right more than once in any six (6) month period. |
| (c) | In connection with the Registration Statement, the Company shall (i) pay all customary costs and expenses in connection with such registration including all registration and filing fees, expenses of any audits incident to or required by any such registration, fees and expenses of complying with securities and “blue sky” laws, printing expenses and fees and expenses of the Company’s counsel and accountants and Financial Industry Regulatory Authority, Inc. filing fees (if any) (other than underwriting discounts and commissions and brokers’ commissions), (ii) notify the Lender promptly upon discovery that the Registration Statement or any supplement to any prospectus forming a part of the Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and any prospectus forming a part of the Registration Statement as may be necessary to comply with the provisions of the Securities Act in connection with resale of the Registrable Securities, and (iii) indemnify and hold harmless the Lender, each underwriter, broker or any other person acting on behalf of the Lender and each other person, if any, who controls any of the foregoing persons within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the fullest extent permitted by law, from and against any and all losses to which any of the foregoing persons may become subject under the Securities Act or otherwise caused by, arising from or relating to any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they were made, contained in any such Registration Statement or prospectus or any amendment thereof or supplement thereto relating to the Registrable Securities, except insofar as such losses are caused by or related to any such untrue statement or omission or alleged untrue statement or omission so made based upon information included in the Seller Questionnaire or otherwise furnished in writing to the Company by the Lender expressly for use therein. |
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| 6. | General Provisions. |
| (a) | Indemnification. The Company will indemnify and hold the Lender and its directors, officers, shareholders, members, partners, employees and agents, each Person who controls the Lender (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees of such controlling persons (each, a “Lender Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable and documented out-of-pocket attorney’s fees and costs of investigation that any such Lender Party may suffer or incur as a result of or relating to (i) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (ii) any action instituted against the Lender Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Lender Party, with respect to any of the transactions contemplated by the Transaction Documents. If any action shall be brought against any Lender Party in respect of which indemnity may be sought pursuant to this Agreement, such Lender Party shall promptly notify the Company in writing. The indemnification required by this Section 6(a) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, in each case, within 5 business days of when the Company receives notice that such bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Lender Party against the Company or others and any liabilities the Company may be subject to pursuant to law. |
| (b) | Governing Law, Waiver of Jury Trial. This Agreement shall be governed by and construed under the laws of the State of New York without regard to the choice of law principles thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of New York located in The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or therewith or with any transaction contemplated hereby or thereby, and hereby irrevocably waives any objection that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. |
| (c) | Notices. All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail; (c) one (1) business day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified at such party’s address as set forth on the signature page hereto, or as subsequently modified by written notice |
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| (d) | Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. |
| (e) | Modification and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by the Lender and the Company Parties. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right. |
| (f) | Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement. |
| (g) | Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements relating to the subject matter hereof existing between the parties hereto are expressly canceled. The Lender acknowledges and agrees that none of the Company Parties or any other Person has made or makes any express or implied representation or warranty, either written or oral, on behalf of the Company Parties (including without limitation any representation or warranty as to the accuracy or completeness of any information regarding the Company Parties furnished or made available to Lender) except for the representations and warranties expressly set forth in this Agreement. |
| (h) | Headings. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. |
| (i) | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one Agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement. |
| (j) | Expenses. The Company shall pay, in cash, all of the Lender’s fees, costs and expenses, including of the Lender’s advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery, performance and enforcement of this Agreement, including, without limitations, the Company’s obligations under Sections 2, 5 and 6(a) hereof or as a result of any material inaccuracy of any of the Company’s representations and warranties hereunder. The Company shall pay all fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by the Purchaser), stamp taxes and other similar taxes and duties levied in connection with the delivery of any Stock to the Lender. Concurrently with the execution and delivery of this Agreement, the Company shall pay, in cash, to the Lender, an amount equal to $92,000 as reimbursement for Lender’s legal expenses incurred to date in connection with the negotiation, preparation, execution and delivery of this Agreement and the other Transaction Documents and legal fees outstanding under the Loan Agreement. |
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Debt Repayment Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| COMPANY PARTIES | ||
| GRYPHON DIGITAL MINING, INC. | ||
| By: | /s/ Steve Gutterman | |
| Name: | Steve Gutterman | |
| Title: | Chief Executive Officer | |
| GRYPHON OPCO I LLC | ||
| By: | Ivy Crypto, Inc., its sole member | |
| By: | /s/ Steve Gutterman | |
| Name: | Steve Gutterman | |
| Title: | Chief Executive Officer | |
| IVY CRYPTO, INC. | ||
| By: | /s/ Steve Gutterman | |
| Name: | Steve Gutterman | |
| Title: | Chief Executive Officer | |
| GRYPHON OPCO II LLC | ||
| By: | Gryphon Digital Mining, Inc., its sole member | |
| By: | /s/ Steve Gutterman | |
| Name: | Steve Gutterman | |
| Title: | Chief Executive Officer | |
Address for notices (all Company Parties): 1180 N. Town Center Drive, Suite 100, Las Vegas, NV | ||
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| LENDER | ||
| ANCHORAGE LENDING CA, LLC | ||
| By: | /s/ Julie Veltman | |
| Name: | Julie Veltman | |
| Title: | Chief Financial Officer | |
Address for notices (Lender): Anchorage Lending CA, LLC 101 S. Reid Street, Suite 329 Sioux Falls, South Dakota 57103 |