Exhibit 10.1
CERTAIN INFORMATION IN THIS EXHIBIT, MARKED BY [***], HAS BEEN EXCLUDED BECAUSE IT IS BOTH NOT MATERIAL AND IS THE
TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is
entered into on May 27, 2025, by and between Trump Media & Technology Group Corp., a Florida corporation (the “Issuer”), and the undersigned investors (collectively, the “Subscribers”
and each a “Subscriber”).
WHEREAS, in connection with the Transaction (as defined below), on the terms and subject to the conditions set forth in this
Subscription Agreement, Subscriber desires to subscribe for and purchase in cash from the Issuer (i) the number of shares of the Issuer’s common stock, par value $0.0001 per share (the “Common Stock”),
set forth on the Subscriber’s signature page hereto (the “Acquired Shares”) for a purchase price of $25.72 per share (the “Share Purchase
Price”) and/or (ii) the number of pre-funded warrants to purchase Common Stock (the “Warrant Shares”) substantially in the form attached hereto as Exhibit B (the “Pre-Funded Warrants” and, together with the Acquired Shares, the “Acquired Securities”) set forth on the signature page hereto, if any, at a purchase price equal to the Share Purchase Price less $0.0001 per Pre-Funded Warrant, with an exercise price equal to $0.0001
per Warrant Share (the “Warrant Purchase Price” and, the aggregate purchase price set forth on the Subscriber’s signature page hereto for the Acquired Securities, the “Purchase Price”), and the Issuer desires to issue and sell to Subscriber the Acquired Securities in consideration of the payment of the Purchase Price by or on behalf of Subscriber to the
Issuer at or prior to the Closing Date (as defined herein);
WHEREAS, the Issuer intends to use the net proceeds of the sale of Securities to purchase Bitcoin and for general corporate
purposes;
WHEREAS, in connection with the Transaction, Yorkville Securities, LLC and Clear Street LLC, in their capacity as placement
agents (the “Placement Agents”) for the offer and sale of the Acquired Securities (the “Transaction”) may identify and solicit
certain other “qualified institutional buyers” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or “accredited investors” (as such term is
defined in Rule 501 under the Securities Act, and each such “qualified institutional buyer” or “accredited investor,” an “Other Subscriber”), each of which shall have entered into
subscription agreements with the Issuer substantially similar to this Subscription Agreement contemporaneously herewith (the “Other Subscription Agreements”), pursuant to which such Other
Subscribers have agreed to subscribe for and purchase, and the Issuer has agreed to issue and sell to such Other Subscribers, on the Closing Date, shares of Common Stock and/or Pre-Funded Warrants at the Share Purchase Price and/or the Warrant
Purchase Price (the “Other Subscriptions”); and
WHEREAS, substantially concurrently with the execution and delivery of this Subscription Agreement, the Issuer is selling in a
private offering to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A under the Securities Act (the “Convertible Debt Financing”) 0% Convertible
Senior Notes Due 2028 (the “Convertible Notes”).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the
conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby agrees to subscribe for and purchase, and the Issuer hereby agrees to issue and sell to Subscriber,
upon the payment of the Purchase Price, the Acquired Securities (such subscription and issuance, the “Subscription”).
2. Closing.
a. Subject to the satisfaction or waiver of the conditions set forth in Sections 2.c and 2.d (other than those
conditions that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing), the closing of the Subscription contemplated hereby (the “Closing”) shall occur substantially concurrently with the closing of the Other Subscriptions (such date, the “Closing Date”).
b. On or prior to 2:00 p.m. New York City time on May 28, 2025 (the “Escrow Payment Deadline”), each Subscriber will (i) pay its total Purchase Price by wire transfer of immediately
available funds in accordance with wire instructions provided by the Issuer to the Subscribers. At the Closing, the Issuer shall deliver or cause to be delivered to the Subscriber a number of Acquired Securities, registered in the name of the
Subscriber (or its nominee in accordance with such Subscriber’s delivery instructions), equal to the number of Acquired Securities indicated on the Subscriber’s signature page to this Subscription Agreement. The Issuer will deliver to
Subscriber as promptly as practicable after the Closing, evidence from the transfer agent of the issuance to Subscriber of their Acquired Securities on and as of the Closing Date.
c. Subject to the satisfaction or waiver of the conditions set forth in Sections 2.c and 2.d (other than those
conditions that by their nature are to be satisfied at Closing, but without affecting the requirement that such conditions be satisfied or waived at Closing):
(i) Subscriber shall deliver to the Issuer (A) no later than the Escrow Payment Deadline, the Purchase Price for the Acquired
Securities by wire transfer of U.S. dollars in immediately available funds to the account specified by the Issuer and (B) no later than two (2) business days in advance of the Closing, any other information that is reasonably requested in the
notice provided by Issuer (the “Closing Notice”) that is required in order to enable the Issuer to issue the Acquired Securities, including, without limitation, the legal name of the
person (or nominee) in whose name such Acquired Securities are to be issued and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable; and
(ii) On the Closing Date, the Issuer shall deliver to Subscriber the Acquired Securities against and upon payment by
Subscriber in book-entry form, free and clear of any Liens (as defined below) or other restrictions whatsoever (other than those arising under state or federal securities laws), in the name of Subscriber (or its nominee in accordance with its
delivery instructions) or to a custodian designated by Subscriber, as applicable. Each book entry for the Acquired Securities shall contain a legend in substantially the following form:
[NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] HAS [NOT] BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
d. The Issuer’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the extent permitted by applicable law, the waiver by the Issuer, of each of the following conditions:
(i) the Placement Agents (as defined herein) and the Issuer shall each have received a completed copy of the “Eligibility
Representations of Subscriber” questionnaire in substantially the form attached as Schedule A hereto no later than the Closing Date;
(ii) all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct in
all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and
as of the Closing Date;
(iii) Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and
conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance, satisfaction or compliance would not or would not be reasonably expected
to prevent, materially delay or materially impair the ability of Subscriber to consummate the Closing;
(iv) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order,
law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription, and no
governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such prevention or prohibition.
e. Subscriber’s obligation to effect the Closing shall be subject to the satisfaction on the Closing Date, or, to the extent permitted by applicable law, the written waiver by Subscriber, of each of the following conditions:
(i) no suspension of the listing on The Nasdaq Global Market, The NYSE Texas, or another national securities exchange
(collectively with The Nasdaq Global Market and The NYSE Texas, the “Exchange”), of the Common Stock shall have occurred, and the Company shall have filed (x) with The Nasdaq Stock Market
LLC (“Nasdaq”) a Notification Form: Listing of Additional Shares and (y) with The New York Stock Exchange Texas (“NYSE”) a Supplemental Listing Application, in each case, for the listing of the Acquired Shares, and neither Nasdaq nor NYSE shall
have raised any objection to such notice or application or the transactions contemplated hereby;
(ii) all representations and warranties of the Issuer contained in this Subscription Agreement shall be true and correct in
all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the
Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects or in all respects, as applicable as of such date);
(iii) the Issuer shall have performed, satisfied and complied (unless waived) in all material respects with all covenants,
agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing;
(iv) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order,
law, rule or regulation (whether temporary, preliminary or permanent) that is then in effect and has the effect of making consummation of the Subscription illegal or otherwise preventing or prohibiting consummation of the Subscription and no
governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such prevention or prohibition;
(vii) no event or series of events that, individually or in the aggregate, has had or would reasonably be expected to have a
Material Adverse Effect shall have occurred and be continuing on the Closing Date;
(viii) the Company shall have delivered to the Placement Agents legal opinions of Nelson Mullins Riley & Scarborough LLP, each in
form and substance reasonably satisfactory to the Placement Agents;
(ix) the Issuer shall have provided each Subscriber with the Issuer’s wire instructions, on Issuer letterhead and executed by
the Chief Executive Officer or Chief Financial Officer;
(x) the Issuer shall have delivered to Subscriber a copy of the irrevocable instructions to the transfer agent instructing the
transfer agent to (x) deliver via restricted book entry Acquired Shares equal to the number of shares of Common Stock set forth on the signature page hereto, registered in the name of such Subscriber; and (y) from time to time, upon exercise of the
Pre-Funded Warrants, the Warrant Shares, in form and substance reasonably satisfactory to the Subscriber, signed by the Chief Executive Officer or Chief Financial Officer of the Issuer certifying to the fulfillment of the conditions set forth in Section 2.e;
(xi) if required, shall have delivered a Pre-Funded Warrant registered in the name of such Subscriber to purchase up to a number of Warrant Shares
equal to 100% of the sum of such Subscriber’s Acquired Shares;
(xii) the Issuer shall have delivered to such Subscriber a certificate, in the form acceptable to such Subscriber, executed by an officer of the
Issuer and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3.a as adopted by the Issuer’s board of directors (the “Board of Directors”) in a form reasonably acceptable to such Subscriber and (ii) the
Charter Documents (as defined below), each as in effect at the Closing; and
(xiii) the Issuer shall have furnished to the Placement Agents a certificate, dated the Closing Date, of its Chief Executive
Officer and its Chief Financial Officer stating in their respective capacities as officers of the Issuer on behalf of the Issuer and not in their individual capacities that (i) for the period from and including the date of this Agreement through
and including the Closing Date, there has not occurred any Material Adverse Effect, (ii) to their knowledge, after reasonable investigation, as of the Closing Date, the representations and warranties of the Issuer in this Agreement are true and
correct and the Issuer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and (iii) there has not been, subsequent to the date of the most recent audited
financial statements included or incorporated by reference in SEC Documents (as defined below), any Material Adverse Effect in the financial position or results of operations of the Issuer, or any change or development that, singularly or in the
aggregate, would reasonably be expected to involve a Material Adverse Effect, except as set forth in the SEC Documents. “knowledge” means the actual knowledge of the officers of the Issuer.
f. Prior to or at the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as
contemplated by this Subscription Agreement.
3. Issuer Representations and Warranties. The Issuer represents and warrants as of the date hereof and the Closing Date, that:
a. The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida, with corporate power and authority to own, lease and operate its properties and conduct its business as
presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement. Neither the Issuer nor any subsidiary of the Issuer as set forth in the SEC Documents and shall, where applicable, also include any
direct or indirect subsidiary of the Issuer formed or acquired after the date hereof ( a “Subsidiary”) is in violation nor default of any of the provisions of its respective
certificate or articles of incorporation, memorandum and articles of association, bylaws or other organizational or charter documents (the “Charter Documents”). Each of the Issuer and
the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction
Document (as defined below), (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Issuer and the Subsidiaries, taken as a whole, or (iii) a material adverse effect
on the Issuer’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. “Proceeding” means an action, claim, suit, investigation or
proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.
b. As of the Closing Date, the Acquired Shares will have been duly authorized and, when issued and delivered to Subscriber against full payment for the Acquired Shares in accordance with the terms of this Subscription Agreement, the Acquired
Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuer’s Charter Documents (as in effect at such time of issuance) or
under the laws of the State of Florida.
c. The Warrant Shares have been duly authorized and reserved for issuance and, upon issuance pursuant to the terms of the Pre-Funded Warrants against full payment therefor in accordance with the terms of the Pre-Funded Warrants, will be duly
and validly issued, fully paid and non-assessable and will be issued free and clear of any Liens or other restrictions (other than those as provided in the Transaction Documents (as defined below) or restrictions on transfer under applicable
state and federal securities laws), and the holder of the Warrant Shares shall be entitled to all rights accorded to a holder of Common Stock.
d. This Subscription Agreement, the Other Subscription Agreements, the Pre-Funded Warrants, and the Escrow Agent Agreement (collectively, the “Transaction Documents”) have been duly
authorized, executed and delivered by the Issuer and the Transaction Documents constitute the valid and legally binding obligation of the Issuer, enforceable against the Issuer in accordance with their respective terms, except as may be limited
or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
e. Assuming the accuracy of Subscriber’s representations and warranties in Section 4, the execution and delivery by the Issuer of the Transaction Documents, and the performance by
the Issuer of its obligations under the Transaction Documents, including the issuance and sale of the Acquired Securities, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or
other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject, which would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or materially affect the validity of the Acquired Securities or the legal authority of the Issuer to comply in all material respects with the terms of this Subscription Agreement; (ii) the Charter Documents; or (iii) any
statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or materially affect the validity of the Acquired Securities or the legal authority of the Issuer to comply in all material respects with the terms of this Subscription Agreement.
f. There are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Acquired Securities, (ii) the Common Stock to be issued
pursuant to any Other Subscription Agreement or Pre-Funded Warrants, or (iii) the Convertible Notes or any securities issued or issuable upon conversion of (or otherwise pursuant to) the Convertible Notes, in each case, that have not been or
will not be validly waived on or prior to the Closing Date.
g. Assuming the accuracy of each Subscriber’s representations and warranties in Section 4, the Issuer is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including the Exchange) or other person in connection with the execution, delivery
and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the Acquired Securities and Warrant Shares), other than (i) the filing with the Securities and Exchange Commission (the “Commission”) of the Registration Statement (as defined below), (ii) the filings required in accordance with Section 8.m, (iii)
notifications required by each Exchange, and (iv) the failure of which to obtain would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or have a material adverse effect on the Issuer’s ability to
consummate the transactions contemplated hereby, including the sale and issuance of the Acquired Securities.
h. As of the date hereof, the authorized capital stock of the Issuer consists of (i) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”) and (ii)
999,000,000 shares of Common Stock. As of the date hereof, there are no shares of Preferred Stock issued and outstanding, there are 220,624,508 shares of Common Stock issued and outstanding, and there are 11,026,253 total warrants
outstanding, with a weighted average exercise price of $11.50 and a five-year exercise term. The Issuer has not issued any shares of Common Stock since its most recently filed or furnished report under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), other than (i) any Acquired Shares issued pursuant to this Agreement, (ii) pursuant to the exercise of employee share options under the Issuer’s outstanding share option awards, (iii) the issuance of
Common Stock or other equity securities to employees pursuant to the Issuer’s equity incentive plan, and (iv) pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recent Quarterly
Report on Form 10-Q filed with the Commission. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a
result of the purchase and sale of the Acquired Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the
Issuer or any Subsidiary is or may become bound to issue additional Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Acquired Securities will not obligate the Issuer or any Subsidiary
to issue Common Stock or other securities to any Person (other than the Subscribers and in connection to the Convertible Debt Financing). There are no outstanding securities or instruments of the Issuer or any Subsidiary with any provision
that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Issuer or any Subsidiary. There are no outstanding securities or instruments of the Issuer or any Subsidiary
that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Issuer or any Subsidiary is or may become bound to redeem a security of the Issuer or such Subsidiary,
except for the Convertible Notes. The Issuer does not have any outstanding share appreciation rights or “phantom stock” awards or agreements or any similar award or agreement. All of the outstanding shares of the Issuer are duly authorized,
validly issued as fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for
or purchase securities. No further approval or authorization of any shareholder, the Board of Directors or others is required for the issuance and sale of the Acquired Securities. There are no shareholders agreements, voting agreements or
other similar agreements with respect to the Issuer’s shares of Common Stock to which the Issuer is a party or, to the knowledge of the Issuer, between or among any of the Issuer’s shareholders. “Common Stock Equivalents” means any securities of the Issuer or the Subsidiaries which would entitle the holder thereof to acquire at any time Common
Stock, including, without limitation, any debt, preference share, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.
i. The financial statements of the Issuer included in the SEC Documents (as defined below) comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in
effect at the time of filing or as such financial statements have been amended or corrected in a subsequent filing. Such financial statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved, 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 Issuer and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash
flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. Since the date of the latest audited financial statements included within the SEC Documents or as otherwise
disclosed in the SEC Documents, (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Issuer 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 and (B) liabilities not required to be reflected in the Issuer’s financial statements pursuant to GAAP or
disclosed in filings made with the Commission, (iii) the Issuer has not altered its method of accounting, (iv) the Issuer has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed
or made any agreements to purchase or redeem any shares and (v) the Issuer has not issued any equity securities to any officer, director or affiliate, except pursuant to existing Issuer equity incentive plans. The Issuer does not have pending
before the Commission any request for confidential treatment of information. Except for the issuance of the Acquired Securities contemplated by this Agreement, the other transactions contemplated by the Transaction Documents, the sale of the
Convertible Notes pursuant to the Convertible Debt Financing, and the use of proceeds contemplated thereby, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Issuer or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Issuer under applicable securities laws at the time
this representation is made or deemed made that has not been publicly disclosed at least one (1) trading day prior to the date that this representation is made.
j. The Issuer has not received any written communication from a governmental entity that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or
violation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
k. At Closing, the issued and outstanding shares of Common Stock other than the Acquired Shares and the Other Subscriptions are registered pursuant to Section 12(b) of the Exchange
Act, and are listed for trading on each Exchange. The Issuer has taken no action that is designed to terminate the registration of the Common Stock under the Exchange Act or the listing of the Common Stock on the Exchange. Since April 1, 2024, the Issuer has not received notice from any Exchange on which the Common Stock are or have been listed or
quoted to the effect that the Issuer is not in compliance with the listing or maintenance requirements of such Exchange. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the
Issuer by the Exchange or the Commission with respect to any intention by such entity to deregister the Common Stock or prohibit or terminate the listing of the Common Stock on the Exchange. The Issuer is, and has no reason to believe that it
will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock are currently eligible for electronic transfer through the Depository Trust Company or another established
clearing corporation and the Issuer is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
l. Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 4, no registration under the Securities Act is required for the offer and sale of
the Acquired Securities by the Issuer to Subscriber or the Other Subscribers in the manner contemplated by this Subscription Agreement or the Other Subscription Agreements, as the case may be. The issuance and sale of the Acquired Securities hereunder does not contravene the rules and regulations of the Exchange.
m. Neither the Issuer nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of
the Acquired Securities.
n. The Issuer is not, and immediately after receipt of payment for the Acquired Securities will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “ICA”).
o. The Issuer has not entered into any subscription agreement, side letter or other agreement with any Other Subscriber or any other investor in connection with such Other Subscriber’s or investor’s direct or indirect investment in the
Issuer, other than (i) the Other Subscription Agreements, (ii) the Pre-Funded Warrants, (iii) any agreements that have been entered into, and to be entered into, in connection to the Convertible Debt Financing for the sale of the Convertible
Notes, and (iv) agreements or forms thereof that have been publicly filed as exhibits to the SEC Documents via the Commission’s EDGAR system, including filings made by the Issuer.
p. The Issuer acknowledges and agrees that each of the Subscribers is acting solely in the capacity of an arm’s length purchaser with respect to this Subscription Agreement and the transactions contemplated hereby. The Issuer further
acknowledges that no Subscriber is acting as a financial advisor or fiduciary of the Issuer (or in any similar capacity) with respect to this Subscription Agreement and the transactions contemplated hereby and thereby and any advice given by
any Subscriber or any of their respective representatives or agents in connection with this Subscription Agreement and the transactions contemplated hereby and thereby is merely incidental to the Subscriber’s purchase of the Acquired
Securities. The Issuer further represents to each Subscriber that the Issuer’s decision to enter into this Subscription Agreement and the Other Subscription Agreements has been based solely on the independent evaluation of the transactions
contemplated hereby by the Issuer and its representatives.
q. Anything in this Subscription Agreement or elsewhere herein to the contrary notwithstanding, it is understood and acknowledged by the Issuer that: (i) none of the Subscribers has been asked by the Issuer to agree, nor has any Subscriber
agreed, to desist from purchasing or selling, long and/or short, securities of the Issuer, or “derivative” securities based on securities issued by the Issuer or to hold the Acquired Securities for any specified term; (ii) past or future open
market or other transactions by any Subscriber, specifically including, without limitation, ”short sales” (as defined in Rule 200 of Regulation SHO under the Exchange Act) or “derivative” transactions, before or after the closing of this or
future private placement transactions, may negatively impact the market price of the Issuer’s publicly-traded securities; (iii) any Subscriber, and counter-parties in “derivative” transactions to which any such Subscriber is a party, directly
or indirectly, presently may have a “short” position in the Common Stock, and (iv) each Subscriber shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Issuer
further understands and acknowledges that (y) one or more Subscribers may engage in hedging activities at various times during the period that the Acquired Securities are outstanding, and (z) such hedging activities (if any) could reduce the
value of the existing shareholders’ equity interests in the Issuer at and after the time that the hedging activities are being conducted. The Issuer acknowledges that such aforementioned hedging activities do not constitute a breach of this
Subscription Agreement or any of the Transaction Documents.
r. The Issuer has made available to Subscriber (including via the Commission’s EDGAR system) a copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other document, if any, filed by the Issuer with the
Commission since its initial registration of the Common Stock (the foregoing materials filed or furnished by the Issuer under the Securities Act and the Exchange Act, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the
requirements of the Securities Act and Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Documents prior to the expiration of any such extension. None of the SEC Documents filed under the Exchange Act (except to the extent that information contained in any SEC Document has been
superseded by a later timely filed SEC Document) contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in the
case of any SEC Document that is a registration statement, or included, when filed, any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in the case of all other SEC Documents.
s. Except as disclosed in the SEC Documents, there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer, any Subsidiary or any of
their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”).
Except as disclosed in the SEC Documents, none of the Actions, if any, (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Acquired Securities or (ii) would, if resolved
adversely to the Issuer, have or reasonably be expected to result in a Material Adverse Effect. Neither the Issuer nor any Subsidiary, nor 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. There has not been, and to the knowledge of the Issuer, there is not pending or contemplated, any investigation by the Commission involving the Issuer or
any current or former director or officer of the Issuer. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Issuer or any Subsidiary under the Exchange Act or the
Securities Act.
t. Except for any placement fees payable to the Placement Agents, no brokerage or finder’s fees or commissions are or will be payable by the Issuer or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Subscribers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
u. None of the Issuer, any predecessor or affiliated issuer of the Issuer, any director, executive officer or other officer of the Issuer or, to the Issuer’s knowledge, any beneficial owner of 20% or more of the Issuer’s outstanding voting
equity securities, calculated on the basis of voting power, or any promoter connected with the Issuer in any capacity (collectively, “Issuer Covered Persons”), is subject to any of the
“bad actor” disqualifications within the meaning of Rule 506(d) under the Securities Act, except for a disqualification event covered by Rule 506(d)(2) or (d)(3).
v. The Issuer acknowledges that there have been no representations, warranties, covenants and agreements made to Issuer by or on behalf of the Subscriber, any of its respective affiliates or any of its or their control persons, officers,
directors, employees, partners, agents or representatives, expressly or by implication, regarding the transactions contemplated by this Subscription Agreement other than those representations, warranties, covenants and agreements included in
this Subscription Agreement (inclusive of the exhibits and schedules attached hereto).
w. The gross proceeds from the Acquired Securities contemplated by the Transaction will be utilized for purposes of acquiring Bitcoin (including costs associated with such acquisition), working capital and general corporate purposes. No more
than 3.0% of the gross proceeds from the sale of Acquired Securities contemplated by the Transaction will be utilized for the purposes of working capital and general corporate purposes.
x. No labor dispute exists or, to the knowledge of the Issuer, is threatened with respect to any of the employees of the Issuer, which would reasonably be expected to result in a Material Adverse Effect. None of the Issuer’s or its
Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Issuer or such Subsidiary, and neither the Issuer nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Issuer
and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Issuer, no executive officer of the Issuer or any Subsidiary, is, or is now expected to be, in violation of any material term of any
employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each
such executive officer does not subject the Issuer or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Issuer and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws
and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
y. The Issuer and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC
Documents, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Issuer nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit.
z. The Issuer and its Subsidiaries have good and marketable title to their respective owned properties and assets owned by them that is material to the business of the Issuer and the subsidiaries, in each case, free and clear of all Liens,
except for Liens as do not materially affect the value of such property, taken as a whole, and do not interfere in any material respect with the use made or proposed to be made of such properties by the Issuer and its Subsidiaries, taken as a
whole, and any Liens arising from the Convertible Debt Financing. Any real property and facilities held under lease by the Issuer and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Issuer and the
Subsidiaries are in compliance, except where such non-compliance would not have or reasonably be expected to have a Material Adverse Effect. “Liens” means a lien, charge, pledge,
security interest, encumbrance, right of first refusal, preemptive right or other restriction.
aa. The Issuer and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property
rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Documents and which the failure to so have would have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). None of, and neither the Issuer nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or
be abandoned, within two years from the date of this Agreement, except where such expiration, termination or abandonment would not have or reasonably be expected to have a Material Adverse Effect. Neither the Issuer nor any Subsidiary has
received, since the date of the latest audited financial statements included within the SEC Documents or as otherwise disclosed in the SEC Documents, a written notice of a claim or otherwise has any knowledge that the Intellectual Property
Rights violate or infringe upon the rights of any Person, except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Issuer, all such Intellectual Property Rights are enforceable and there
is no existing infringement by another Person of any of the Intellectual Property Rights. The Issuer and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
bb. The Issuer and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary for companies of similar size as the Issuer in the businesses in
which the Issuer and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Issuer nor any Subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
cc. Except as disclosed in the SEC Documents, none of the officers or directors of the Issuer or any Subsidiary and, to the knowledge of the Issuer, none of the employees of the Issuer or any Subsidiary is presently a party to any transaction
with the Issuer or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Issuer, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered,
(ii) reimbursement for expenses incurred on behalf of the Issuer and (iii) other employee benefits, including equity incentives granted under any equity incentive plan of the Issuer.
dd. Except as set forth in the SEC Documents, the Issuer and the Subsidiaries are in compliance in all material respects with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date
hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. Except as set forth in the SEC Documents, the Issuer and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Issuer and the Subsidiaries have established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Issuer and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Issuer in the reports it files or submits
under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
ee. Except as set forth in SEC Documents and pursuant to the Convertible Debt Financing and in connection with this Transaction, no Person has any right to cause the Issuer or any Subsidiary to effect the registration under the Securities Act
of any securities of the Issuer or any Subsidiary.
ff. The Issuer and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other
similar anti-takeover provision under the Charter Documents or the laws of its jurisdiction of incorporation that is or could become applicable to the Subscribers as a result of the Subscribers and the Issuer fulfilling their obligations or
exercising their rights under the Transaction Documents, including without limitation as a result of the Issuer’s issuance of the Acquired Securities and the Subscribers’ ownership of the Acquired Securities.
gg. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Convertible Notes, the use of proceeds, or as otherwise to be disclosed in the documents to be issued pursuant to Section 8.m, the Issuer confirms that neither it nor any other Person acting on its behalf has provided any of the Subscribers with any information that it believes constitutes non-public
information. The Issuer understands and confirms that the Subscribers will rely on the foregoing representation in effecting transactions in securities of the Issuer. The Issuer acknowledges and agrees that no Subscriber makes or has made any
representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 4 hereof.
hh. Assuming the accuracy of the Subscribers’ representations and warranties set forth in Section 4, other than the Convertible Debt Financing, neither the Issuer, nor any of its affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Acquired Securities to be integrated with prior offerings by the Issuer for
purposes of (i) the Securities Act which would require the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any Exchange on which any of the securities of the Issuer are
listed or designated.
ii. Based on the consolidated financial condition of the Issuer as of the Closing Date, after giving effect to the receipt by the Issuer of the proceeds from the sale of the Acquired Securities hereunder, (i) the fair saleable value of the
Issuer’s assets exceeds the amount that will be required to be paid on or in respect of the Issuer’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Issuer’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Issuer, consolidated and
projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Issuer, together with the proceeds the Issuer would receive, were it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Issuer does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Issuer has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the
bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. All outstanding secured and unsecured Indebtedness of the Issuer or any Subsidiary, or for which the Issuer or any Subsidiary has commitments is set
forth in the SEC Documents. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than accrued
liabilities and trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in
the Issuer’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any
lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Neither the Issuer nor any Subsidiary is in default with respect to any Indebtedness.
jj. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Issuer and its Subsidiaries each (i) has made or filed all federal, state and local income and
all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations and (iii) has set aside on its books provisions reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.
kk. Neither the Issuer nor any Subsidiary, nor to the knowledge of the Issuer or any Subsidiary, any agent or other person acting on behalf of the Issuer or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Issuer or any Subsidiary (or made by any person acting on its behalf of which the Issuer is aware) which is in violation of law, or (iv)
violated in any material respect any provision of Foreign Corrupt Practices Act of 1977, as amended.
ll. The Issuer’s accounting firm is Semple, Marchal & Cooper, LLP. To the knowledge and belief of the Issuer, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in the Issuer’s Annual Report on Form 10-K for the fiscal year ending December 31, 2025. There are no disagreements of any kind presently existing, or reasonably anticipated by the
Issuer to arise, between the Issuer and the accountants formerly or presently employed by the Issuer and the Issuer is current with respect to any fees owed to its accountants which could affect the Issuer’s ability to perform any of its
obligations under any of the Transaction Documents.
mm. The Issuer has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Issuer to
facilitate the sale or resale of any of the Acquired Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Acquired Securities, or (iii) paid or agreed to pay to any Person any compensation
for soliciting another to purchase any other securities of the Issuer, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agents in connection with the placement of the Acquired Securities.
nn. Each share option granted by the Issuer under the Issuer’s share option plan was granted (i) in accordance with the terms of the Issuer’s share option plan and (ii) with an exercise price at least equal to the fair market value of the
Common Stock on the date such share option would be considered granted under GAAP and applicable law. No share option granted under the Issuer’s share option plan has been backdated. The Issuer has not knowingly granted, and there is no and has
been no Issuer policy or practice to knowingly grant, share options prior to, or otherwise knowingly coordinate the grant of share options with, the release or other public announcement of material information regarding the Issuer or its
Subsidiaries or their financial results or prospects.
oo. (i) There has been no security breach or other compromise of or relating to any of the Issuer’s or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”) and (y) the Issuer
and the Subsidiaries have not been notified of, and has no knowledge of, any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data, except, with respect to either
(x) or (y), those which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (ii) the Issuer and the Subsidiaries are presently in compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such
IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Issuer and the Subsidiaries have implemented and maintained
commercially reasonable safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Issuer and the Subsidiaries have
implemented backup and disaster recovery technology consistent with industry standards and practices.
pp. (i) The Issuer and the Subsidiaries are, and at all times since April 1, 2024, in material compliance with all applicable state, federal and foreign data privacy and security laws and regulations, including, without limitation, the
European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, “Privacy Laws”); (ii) the Issuer and the Subsidiaries have in place and have taken steps
reasonably designed to ensure material compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal Data (as defined below) (the “Policies”);
(iii) the Issuer provides accurate notice of its applicable Policies to its customers, employees, third party vendors and representatives as required by the Privacy Laws; and (iv) applicable Policies provide accurate and sufficient notice of
the Issuer’s then-current privacy practices relating to its subject matter, and do not contain any material omissions of the Issuer’s then-current privacy practices, as required by Privacy Laws. “Personal
Data” means (i) a natural person’s name, street address, telephone number, email address, photograph, social security number, bank information, or customer or account number; (ii) any information which would qualify as
“personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; and (iv) any other piece of information that allows the identification of such natural person, or his or her
family, or permits the collection or analysis of any identifiable data related to an identified person’s health or sexual orientation. (i) None of such disclosures made or contained in any of the Policies have been inaccurate, misleading, or
incomplete in material violation of any Privacy Laws and (ii) the execution, delivery and performance of the Transaction Documents will not result in a breach of any Privacy Laws or Policies. Neither the Issuer nor the Subsidiaries (i) to the
knowledge of the Issuer, has received written notice of any actual or potential liability of the Issuer or the Subsidiaries under, or actual or potential violation by the Issuer or the Subsidiaries of, any of the Privacy Laws; (ii) is currently
conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement by or with
any court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy Law.
qq. The Issuer is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Issuer shall so certify upon Subscriber’s request.
rr. Neither the Issuer nor any of its Subsidiaries is subject to the Bank Holding Issuer Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Issuer
nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Issuer nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the
BHCA and to regulation by the Federal Reserve.
ss. Neither the Issuer nor any Subsidiary or, to the knowledge of the Issuer, any director, officer, agent, employee, affiliate or representative of the Issuer or any of its Subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the
Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, His
Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Issuer located,
organized or resident in a country or territory that is the subject of Sanctions; and the Issuer will not directly or indirectly use the proceeds of the sale of the Acquired Securities, or lend, contribute or otherwise make available such
proceeds to any Subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner
that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
tt. The operations of the Issuer and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or Proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Issuer or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer or any Subsidiary, threatened.
uu. There is no transaction, arrangement, or other relationship between the Issuer and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Issuer in SEC Filings and is not so disclosed and would have or
reasonably be expected to result in a Material Adverse Effect.
vv. Other than the Placement Agents, the Issuer is not aware of any person (other than any Issuer Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of
any Acquired Securities.
ww. The
Issuer has not entered into any subscription agreement, side letter or other agreement with any Other Subscriber in connection with such Other Subscription Agreements to purchase Acquired Securities thereunder on terms more favorable to such
Subscriber or other investor than as set forth in this Agreement, other than terms particular to compliance with any law, regulation or policy specifically applicable to such other Subscriber or its affiliates or related funds or in connection
with the taxable status of such other Subscriber or its affiliates or related funds or other terms that are immaterial to the Subscriber.
4. Subscriber Representations and Warranties. Subscriber represents and warrants, as of the date hereof and the Closing Date, that:
a. Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with the requisite entity power and authority to enter into, deliver and perform its
obligations under this Subscription Agreement.
b. This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. This Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity.
c. The execution and delivery by Subscriber of this Subscription Agreement, and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Acquired Securities and the consummation of the
other transactions contemplated herein, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound
or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of
Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to comply in all material respects with the terms of this
Subscription Agreement; (ii) the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or
any of Subscriber’s properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement.
d. Subscriber (i) is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act satisfying the applicable requirements set forth on Schedule A
and acknowledges that the sale contemplated hereby is being made in reliance on a private placement exemption to “Accredited Investors” within the meaning of Section 501(a) of Regulation D under the Securities Act and similar exemptions under
state law, and is an “institutional account” as defined in FINRA Rule 4512(c), (ii) is acquiring the Acquired Securities, and upon the exercise of the Pre-Funded Warrants, will acquire the Warrant Shares issuable upon exercise of the Pre-Funded
Warrants, only for its own account and not for the account of others, or if Subscriber is subscribing for the Acquired Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified
institutional buyer” or an “accredited investor” (each as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and
agreements herein on behalf of each owner of each such account and (iii) is not acquiring the Acquired Securities, and upon the exercise of the Pre-Funded Warrants, will not acquire the Warrant Shares issuable upon exercise of the Pre-Funded
Warrants, with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. Subscriber has completed Schedule A following the
signature page hereto and the information contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the Acquired Securities, and upon the exercise of the Pre-Funded Warrants, acquiring
the Warrant Shares issuable upon exercise of the Pre-Funded Warrants, unless Subscriber is a newly formed entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c).
Accordingly, Subscriber is aware that this offering of the Acquired Securities meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J).
e. Subscriber understands that the Acquired Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Acquired Securities and Warrant Shares underlying the Pre-Funded
Warrants have not been registered under the Securities Act. Subscriber understands that the Acquired Securities and Warrant Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective
registration statement under the Securities Act, except (i) to the Issuer or a Subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the
Securities Act, (iii) pursuant to Rule 144 (including Rule 144(i) thereunder) under the Securities Act; provided that all of the applicable conditions thereof have been
met, or (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act (including, without limitation, a private resale pursuant to the so-called “Section 4(a)(1 1/2)”), and in each case, in accordance
with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book-entry records representing the Acquired Securities shall contain a legend to such effect. Subscriber
acknowledges that the Acquired Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Securities will be subject to the foregoing transfer
restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Securities and may be required to bear the financial risk of an investment in the Acquired Securities for an indefinite
period of time. Subscriber acknowledges and agrees that the Acquired Securities will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 until at least six months from the Closing Date. Subscriber understands
that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Acquired Securities.
f. Subscriber understands and agrees that Subscriber is purchasing the Acquired Securities directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to
Subscriber by or on behalf of the Issuer, any of their respective affiliates or control persons, officers, directors, employees, partners, agents or representatives, expressly or by implication, regarding the transactions contemplated by this
Subscription Agreement, other than those representations, warranties, covenants and agreements included in this Subscription Agreement.
g. Subscriber’s acquisition and holding of the Acquired Securities will not constitute or result in a non-exempt prohibited transaction under section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law.
h. In making its decision to subscribe for and purchase the Acquired Securities, Subscriber represents that it has relied solely upon its own independent investigation, the investor
presentation provided to Subscriber and the Issuer’s representations, warranties and covenants set forth in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements,
representations or warranties or other information provided by the Placement Agents or any of its affiliates, or any of their respective officers, directors, employees or representatives, concerning the Issuer or the Acquired Securities or
the offer and sale of the Acquired Securities. Subscriber acknowledges and agrees that Subscriber has received and has had the opportunity to review such information as Subscriber deems necessary in order to make an investment decision with
respect to the Acquired Securities and the Issuer, including the SEC Documents, the risk factors set forth therein, information relating to the Convertible Debt Financing and the Convertible Notes, and a summary of risks set forth in Exhibit
A. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such
Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Acquired Securities. Subscriber acknowledges and understands that the Issuer may possess material, nonpublic information regarding the Issuer not known to Subscriber that may impact the value of the Issuer and the Acquired
Securities. Subscriber understands, based on its experience, the disadvantage to which Subscriber is subject due to the disparity of information between Subscriber and the Issuer. Notwithstanding such disparity, Subscriber has deemed it
appropriate to enter into this Subscription Agreement and to consummate the transactions contemplated hereunder.
i. Subscriber became aware of this offering of the Acquired Securities solely by means of direct contact between Subscriber and the Issuer, the Placement Agents or a representative of the Issuer or the Placement Agents, and the Acquired
Securities were offered to Subscriber solely by direct contact between Subscriber and the Issuer, the Placement Agents or a representative of the Issuer or the Placement Agents. Subscriber did not become aware of this offering of the Acquired
Securities, nor were the Acquired Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Acquired Securities (i) were not offered by any form of general solicitation or
general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
j. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Acquired Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Accordingly, Subscriber
is aware that the offering of the Acquired Securities meets the institutional account exemptions from FINRA Rule 2111(b).
k. Subscriber acknowledges and agrees that none of the Placement Agents, any affiliate of the Placement Agents or any officer, director, employee or representative of any of the Placement Agents or any affiliate thereof has provided
Subscriber with any information or advice with respect to the Acquired Securities nor is such information or advice necessary or desired. Subscriber acknowledges that none of the Placement Agents, any affiliate of the Placement Agents or any of
its officers, directors, employees or representatives (i) has made any representation as to the Issuer or the quality of the Acquired Securities, and the Placement Agents may have acquired non-public information with respect to the Issuer,
which Subscriber agrees need not be provided to it, (ii) has made an independent investigation with respect to the Issuer or the Acquired Securities or the accuracy, completeness or adequacy of any information supplied to Subscriber by the
Issuer, (iii) has acted as Subscriber’s financial advisor or fiduciary in connection with the issuance and purchase of the Acquired Securities and (iv) has prepared a disclosure or offering document in connection with the offer and sale of the
Acquired Securities.
l. Without limiting Subscriber’s right to rely upon the Issuer’s representations, warranties and covenants contained herein, alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has
adequately analyzed and fully considered the risks of an investment in the Acquired Securities and determined that the Acquired Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable
future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists.
m. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Securities or made any findings or determination as to the fairness of an investment in the Acquired
Securities.
n. The operations of
the Subscriber have been conducted in material compliance with the rules and regulations administered or conducted by OFAC applicable to such Subscriber. Such Subscriber has performed due diligence necessary to reasonably determine that its
beneficial owners are not named on the lists of denied parties or blocked persons administered by OFAC, resident in or organized under the laws of a country that is the subject of Sanctions, or otherwise the subject of Sanctions, except as
permitted under Sanctions.
o. Subscriber is not currently (and at all times through the Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) acting
for the purpose of acquiring, holding, voting or disposing of equity securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than any “group” consisting solely of the Subscriber and one or more of its
affiliates.
p. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code, (iii) an entity
whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee
benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing
clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws,” and together with the ERISA Plans, the “Plans”), Subscriber represents and warrants that (i) neither the Issuer nor any of its respective
affiliates has provided investment advice or has otherwise acted as the Plan’s fiduciary, with respect to its decision to acquire and hold the Acquired Securities, and none of the Issuer or any of its respective affiliates is or shall at any
time be the Plan’s fiduciary with respect to any decision to acquire and hold the Acquired Securities, and none of the Issuer or any of its respective affiliates is or shall at any time be the Plan’s fiduciary with respect to any decision in
connection with Subscriber’s investment in the Acquired Securities and (ii) its purchase of the Acquired Securities will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code, or any applicable
Similar Law.
q. Subscriber has, and at the Closing, will have, sufficient funds to pay the Purchase Price pursuant to Section 2.b(i).
5. [Reserved.]
6. Registration Rights.
a. The Issuer agrees to use commercially reasonable efforts to submit to or file with the Commission, within 5th business day of the closing of the Convertible Debt Financing (the “Filing
Date”) (at the Issuer’s sole cost and expense), a registration statement on Form S-3 (or Form S-1 if Form S-3 is not available) (the “Registration Statement”),
registering the resale of the Registrable Securities (as defined herein), which Registration Statement may include Warrant Shares or those held by other holders, and the Issuer shall use its commercially reasonable efforts to have the
Registration Statement declared effective under the Securities Act as soon as practicable after the filing thereof and upon the earlier of (i) the 15th business day (or 60th business day if the Commission notifies the
Issuer that it will “review” the Registration Statement) following the Closing Date and (ii) the 5th business day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the Registration
Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effective Date”); provided,
however, that the Issuer’s obligations to include the Registrable Securities in the Registration Statement are contingent upon Subscriber furnishing in writing to the
Issuer such information regarding Subscriber, the securities of the Issuer held by Subscriber and the intended method of disposition of the Registrable Securities as shall be reasonably requested by the Issuer to effect the registration of the
Registrable Securities, and Subscriber shall execute such documents in connection with such registration as the Issuer may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Issuer
shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement as permitted under Section 6.c of this Agreement. Notwithstanding the foregoing, if the Commission prevents the Issuer from including any or all
of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Registrable Securities by the applicable stockholders or otherwise, such Registration
Statement shall register for resale such number of Registrable Securities which is equal to the maximum number of Registrable Securities as is permitted by the Commission. In such event, the number of Registrable Securities to be registered for
each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. Upon notification by the Commission that the Registration Statement has been declared effective by the Commission,
within two (2) business days thereafter, the Issuer shall file the final prospectus under Rule 424 of the Securities Act. The Issuer will provide a draft of the Registration Statement to Subscriber for review at least two (2) business days in
advance of filing the Registration Statement; provided, that for the avoidance of doubt, in no event shall the Issuer be required to delay or postpone the filing of such
Registration Statement as a result of or in connection with Subscriber’s review. In no event shall Subscriber be identified as a statutory underwriter in the Registration Statement unless requested by the Commission; provided, that if the Commission requests that Subscriber be identified as a statutory underwriter in the Registration Statement, Subscriber will have an opportunity to withdraw from the
Registration Statement. Subscriber shall not be entitled to use the Registration Statement for an underwritten offering of Registrable Securities. For purposes of clarification, any failure by the Issuer to file the Registration Statement by
the Filing Date or to effect such Registration Statement by the Effective Date shall not otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth above in this Section 6. “Registrable Securities” means the Acquired Shares, Warrant Shares, and any shares of Common Stock issued or issuable with respect to the
Acquired Shares and Warrant Shares as a result of any stock split or subdivision, stock dividend, recapitalization, exchange or similar event.
b. In the case of the registration effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon reasonable request, inform Subscriber as to the status of such registration. At its expense the Issuer shall:
(i) except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a
Registration Statement, use its commercially reasonable efforts to keep such registration continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of
any material misstatements or omissions, until the earlier of the following: (A) Subscriber ceases to hold any Registrable Securities, (B) the date all Registrable Securities held by Subscriber may be sold without restriction under Rule 144 of the
Securities Act, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for the Issuer to be in compliance with the current public information
required under Rule 144(c)(1) or Rule 144(i)(2), as applicable, and (C) three (3) years from the Effective Date of the Registration Statement. The period of time during which the Issuer is required hereunder to keep a Registration Statement
effective is referred to herein as the “Registration Period”;
(ii) during the Registration Period, advise Subscriber promptly:
(1) when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration
Statement or any post-effective amendment thereto has become effective;
(2) of any request by the Commission for amendments or supplements to any Registration Statement or the prospectus included
therein or for additional information;
(3) after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(4) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable
Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(5) in accordance with Section 6.c of this Subscription
Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, any Registration Statement does not contain an untrue statement of a material fact or does not
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any prospectus does not include an untrue statement of a material fact or does not omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Notwithstanding anything to the contrary set forth herein, the Issuer shall not, when so advising Subscriber of such events, provide Subscriber
with any material, nonpublic information regarding the Issuer other than, to the extent that providing notice to Subscriber of the occurrence of an event listed in clause (5) above constitutes material, nonpublic information regarding the Issuer,
unless the Issuer has notified Investor of the existence of such an event (without providing material, nonpublic information about the specific nature of such event) and obtained the written consent of the Investor to receive such information;
(iii) during the Registration Period, use its commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of any Registration Statement as soon as reasonably practicable;
(iv) during the Registration Period, upon the occurrence of any event contemplated above, except for such times as the Issuer
is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such
Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, such prospectus will not include any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) during the Registration Period, use its commercially reasonable efforts (y) to remain listed on each Exchange and to cause
all Registrable Securities to be listed on each securities exchange or market, if any, on which the Common Stock issued by the Issuer have been listed and (z) to timely comply in all material respects with the Company’s reporting, filing and other
obligations under the rules and regulations of the Commission and each Exchange;
(vi) during the Registration Period, use its commercially reasonable efforts to take all other steps necessary to effect the
registration of the Registrable Securities contemplated hereby and, for so long as Subscriber holds Registrable Securities, to enable Subscriber to sell the Registrable Securities under Rule 144; and
(vii) subject to receipt from Subscriber by the Issuer and its transfer agent
of customary representations and other documentation reasonably acceptable to the Issuer and the transfer agent in connection therewith, Subscriber may request that the Issuer remove any legend from the book entry position evidencing its Registrable
Securities following the earliest of such time as such Registrable Securities (A) are subject to or have been or are about to be sold or
transferred pursuant to an effective registration statement or (B) have been or are about to be sold pursuant to Rule 144. If required by the Issuer’s transfer agent, the Issuer shall cause its counsel to deliver to such transfer agent an opinion
of counsel to the effect that the removal of restrictive legends in such circumstances may be effected under the Securities Act. If restrictive legends are no longer required for such Registrable Securities pursuant to the foregoing, the Issuer shall, in accordance with the provisions of this Section 6 and within two (2) business days of any request therefor from
Subscriber accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the transfer agent irrevocable instructions that
the transfer agent shall make a new, unlegended entry for such book entry Registrable Securities. The Issuer shall be responsible for the fees of its transfer agent and all Depository Trust
Company fees associated with such issuance.
c. Notwithstanding anything to the contrary in this Subscription Agreement, the Issuer shall be entitled, from time to time, to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness or use thereof, if
it determines that the negotiation or consummation of a transaction by the Issuer or its Subsidiaries is pending or an event has occurred, which negotiation, consummation or event the Board of Directors reasonably believes, upon the advice of
outside legal counsel, would require additional disclosure by the Issuer in the Registration Statement of material information that the Issuer has a bona fide business purpose for keeping confidential and the non-disclosure of which in the
Registration Statement would be expected, in the reasonable determination of the Issuer, upon the advice of outside legal counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements or is otherwise
necessary for the Registration Statement to not contain a material misstatement or omission (each such circumstance, a “Suspension Event”); provided, however, that the Issuer may not delay or suspend the effectiveness or use of the Registration Statement on more than two
(2) occasions or for more than ninety (90) consecutive calendar days, or for more than one hundred twenty (120) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Issuer of the
happening of any Suspension Event (which notice shall not contain material, nonpublic information) during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement contains any
untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any related prospectus includes any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, Subscriber agrees that (i) it will promptly discontinue offers and sales of the
Registrable Securities under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which the Issuer agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above
and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Issuer that it may resume such offers and sales and (ii) it will maintain the confidentiality of any information included in such
written notice delivered by the Issuer unless otherwise required by law or subpoena. If so directed by the Issuer, Subscriber will deliver to the Issuer or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the
Registrable Securities in Subscriber’s possession; provided, however, that this obligation to
deliver or destroy all copies of the prospectus covering the Registrable Securities shall not apply (A) to the extent Subscriber is required to retain a copy of such prospectus (x) in order to comply with applicable legal, regulatory,
self-regulatory or professional requirements or (y) in accordance with a bona fide pre-existing document retention policy or (B) to copies stored electronically on archival servers as a result of automatic data back-up.
d. Subscriber may deliver written notice (including via email in accordance with Section 8.k) (an “Opt-Out Notice”) to
the Issuer requesting that Subscriber not receive notices from the Issuer otherwise required by this Section 6; provided,
however, that Subscriber may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from Subscriber (unless subsequently revoked), (i) the
Issuer shall not deliver any such notices to Subscriber and Subscriber shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to Subscriber’s intended use of an effective Registration Statement,
Subscriber will notify the Issuer in writing at least two (2) business days in advance of such intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 6.d) and the related suspension period remains in effect, the Issuer will so notify Subscriber, within one (1) business day of Subscriber’s notification to the Issuer, by
delivering to Subscriber a copy of such previous notice of Suspension Event, and thereafter will provide Subscriber with the related notice of the conclusion of such Suspension Event immediately upon its availability.
e. The Issuer shall, notwithstanding any termination of this Subscription Agreement in accordance with Section 7.b, indemnify, defend and hold harmless Subscriber (to the extent a
seller under the Registration Statement), its directors, officers, agents, broker-dealers, and employees and each person who controls Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the
fullest extent permitted by applicable law, from and against any and all out-of-pocket losses, claims, damages, liabilities and reasonable and documented costs (including, without limitation, reasonable and documented costs of preparation and
investigation and reasonable documented attorneys’ fees of one legal counsel (and one local counsel)) and all other reasonable and documented expenses (collectively, “Losses”), as
incurred, that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement or in any amendment or supplement thereto, or arising out of or relating to any omission or
alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement of a material fact included in any prospectus included in the Registration
Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding Subscriber furnished in writing to the Issuer by
Subscriber expressly for use therein or Subscriber has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder; provided, however, that the indemnification contained in this Section 6 shall not apply to amounts paid in
settlement of any Losses if such settlement is effected without the consent of the Issuer (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Issuer be liable for any Losses to the extent they arise out of
or are based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by Subscriber expressly for inclusion in the Registration Statement, or (B) in connection with any offers or sales effected by
or on behalf of Subscriber in violation of Section 6.c hereof. The Issuer shall notify Subscriber reasonably promptly of the institution, threat or assertion of any proceeding arising
from or in connection with the transactions contemplated by this Section 6 of which the Issuer is aware. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of an indemnified party and shall survive the transfer of the Registrable Securities by Subscriber.
f. Subscriber shall, severally and not jointly, indemnify and hold harmless the Issuer, its directors, officers, agents and employees, and each person who controls the Issuer (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, that arise out of or are based upon (i) any untrue statement of a material fact contained in any Registration Statement or in
any amendment or supplement thereto or arising out of or relating to any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement of a material fact
included in any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission 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, to the extent, but only to the extent, that such untrue or omissions are based upon information regarding Subscriber
furnished in writing to the Issuer by Subscriber expressly for use therein or a material fact that Subscriber has omitted from such information; provided, however, that
the indemnification contained in this Section 6.f shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of Subscriber (which
consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Registrable
Securities giving rise to such indemnification obligation. Subscriber shall notify the Issuer promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 6.f of which Subscriber is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall
survive the transfer of the Acquired Securities by Subscriber.
g. If the indemnification provided under this Section 6 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses,
then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any
action in question, including any untrue statement of a material fact or omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and
indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses shall be deemed to include, subject to the limitations set
forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution pursuant to this Section 6.g from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s
obligation to make a contribution pursuant to this Section 6.g shall be several, not joint. In no event shall the liability of the Subscriber be greater in amount than the dollar
amount of the net proceeds received by the Subscriber upon the sale of the Acquired Securities purchased pursuant to this Subscription Agreement giving rise to such contribution obligation.
7. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate
without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement, (b) if any of the conditions
to the Closing set forth in Section 2 of this Subscription Agreement are not satisfied at, or are not capable of being satisfied on or prior to the Closing and, as a result thereof,
the transactions contemplated by this Subscription Agreement will not be or are not consummated at the Closing, or (c) at the election of Subscriber, on or after June 5, 2025; provided
that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from
any such willful breach. In the event that this Subscription Agreement is terminated for any reason, the Company shall within one (1) Business Day following such termination, return to Subscriber (by wire transfer of U.S. dollars in immediately
available funds to the account specified by such Subscriber) all funds deposited in escrow by Subscriber in connection with the Transaction.
8. Miscellaneous.
a. Each party hereto acknowledges that the other party hereto and the Placement Agents will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the
Closing, each party hereto agrees to promptly notify the other party hereto if any of the acknowledgments, understandings, agreements, representations and warranties made by such party as set forth herein are no longer accurate in all material
respects. Subscriber further acknowledges and agrees that each of the Placement Agents is a third-party beneficiary of the representations and warranties of Subscriber contained in Section 4
and the Issuer further acknowledges and agrees that each of the Placement Agents is a third-party beneficiary of the representations and warranties of the Issuer contained in Section 3.
b. Subscriber agrees that none of (i) any Other Subscriber pursuant to Other Subscription Agreements entered into in connection with the Transaction (including the affiliates or controlling persons, members, officers, directors, partners,
agents, or employees of any such Other Subscriber), (ii) the Placement Agents, its affiliates or any of its or their respective affiliates’ control persons, officers, directors or employees, (iii) any affiliates or any control persons,
officers, directors, employees, partners, agents or representatives of any of the Issuer shall be liable to Subscriber or to any Other Subscriber pursuant to this Subscription Agreement, the Pre-Funded Warrants or the Other Subscription
Agreements, as applicable, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby or thereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in
connection with the purchase of the Acquired Securities. On behalf of itself and its affiliates, the Subscriber releases each of the entities or individuals described above in respect of any losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses or disbursements related to this Subscription Agreement or the transactions contemplated hereby.
c. The Issuer and Subscriber are entitled to rely upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby to the extent required by law or by regulatory bodies.
d. Notwithstanding anything to the contrary in this Subscription Agreement, prior to the Closing, Subscriber may not transfer or assign all or a portion of its rights and obligations under this Subscription Agreement, other than to one or
more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of Subscriber) without the prior consent of the Issuer; provided that such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Subscription Agreement, makes the representations and warranties in Section 4 and completes Schedule A hereto; provided, further,
that, no assignment shall relieve the assigning party of any of its obligations hereunder, including any assignment to any fund or account managed by the same investment manager as Subscriber or by an affiliate of such investment manager. In
the event of such a transfer or assignment, Subscriber shall complete the form of assignment attached as Schedule B hereto. The Issuer may not assign or transfer all or any portion of
its rights or obligations under this Subscription Agreement without the consent of the Subscriber.
e. The Issuer may request from Subscriber such additional information as the Issuer may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Acquired Securities and to register the Acquired Securities for resale,
and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures; provided that the Issuer agrees to keep any such information provided by Subscriber confidential.
f. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.
g. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective affiliates and their respective heirs, executors, administrators, successors,
legal representatives and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors,
legal representatives and permitted assigns.
h. If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription
Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
i. This Subscription Agreement may be executed in two (2) or more counterparts (including by electronic means), all of which shall be considered one and the same agreement and shall become effective when signed by each of the parties and
delivered to the other parties, it being understood that all parties need not sign the same counterpart.
j. Each party shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
k. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or telecopied, sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail,
postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) upon receipt of an appropriate electronic answerback or confirmation when so delivered by telecopy (to such number specified below or another
number or numbers as such person may subsequently designate by notice given hereunder), (iii) when sent, with no mail undeliverable or other rejection notice, if sent by email or (iv) five (5) business days after the date of mailing to the
address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(A) if to Subscriber, to such address or addresses set forth on the signature page hereto;
(B) if to the Issuer, to:
Trump Media & Technology Group Corp.
401 N. Cattlemen Rd., Ste. 200
Sarasota, Florida 34232
Attention: Scott Glabe, General Counsel
Email: [***]@tmediatech.com
with a copy (which shall not constitute notice) to:
Nelson Mullins Riley & Scarborough LLP
101 Constitution Avenue, NW, Suite 900
Washington, D.C. 20001
Attention: Jon Talcott, Esq.
Email: [***]@nelsonmullins.com
(C) if to the Placement Agents, to:
Clear Street LLC
4 World Trade Center, Floor 45
New York, NY 10007
Attention: Ryan Gerety
Email: [***]@clearstreet.io
Yorkville Securities, LLC
1012 Springfield Ave.
Mountainside, New Jersey 07092
Attention: Michael Markunas, General Counsel
Michelle Geller, Senior Managing Director & Legal Counsel
Email: [***]@yorkvilleadvisors.com
[***]@yorkvilleadvisors.com
Copy (which copy shall not constitute notice) to:
Reed Smith LLP
200 South Biscayne Boulevard,
Suite 2600, Southeast Financial Center
Miami, Florida 33131
Attention: Constantine Karides, Esq.
Anne G. Peetz, Esq.
Lynwood Reinhardt, Esq.
Email: [***]@reedsmith.com
[***]@reedsmith.com
[***]@reedsmith.com
l. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation,
execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law thereof.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF FLORIDA, FLORIDA STATE COURTS LOCATED IN THE COUNTY OF SARASOTA, FLORIDA AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF FLORIDA SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF
THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR
INTERPRETATION OR ENFORCEMENT HEREOF THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE
ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH FLORIDA STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT
ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 8.K OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES
THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 8.L.
m. The Issuer shall, prior to 9:30 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement (or, if this Subscription Agreement is executed and delivered by the parties hereto
prior to 8:00 a.m., New York City time, on a business day, prior to 9:30 a.m., New York City time, on the date hereof), issue one or more press releases or furnish or file with the Commission a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing, to the extent not previously publicly disclosed, all material terms of the transactions contemplated hereby, the Transaction and any other material,
nonpublic information that the Issuer has provided to Subscriber at any time prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure Document, to the Issuer’s knowledge, Subscriber shall not be in
possession of any material, nonpublic information received from the Issuer or any of its officers, directors, employees or other representatives. For the avoidance of doubt, the Issuer may be aware of material non-public information regarding
the Issuer at the time of Closing that has not been communicated to the Subscriber. Notwithstanding anything in this Subscription Agreement to the contrary, the Issuer shall not publicly disclose the name of Subscriber or any of its affiliates,
or include the name of Subscriber or any of its affiliates, without the prior written consent of Subscriber, (i) in any press release or (ii) in any filing with the Commission or any regulatory agency or trading market, except (A) as required
by the federal securities law in connection with the Registration Statement, (B) in a press release or marketing materials of the Issuer in connection with the Transaction to the extent any such disclosure is substantially equivalent to the
information that has previously been made public without breach of the obligation under this Section 8.m or (C) to the extent such disclosure is required by law, at the request of the
staff of the Commission or regulatory agency or under the regulations of the Exchange or by any other governmental authority, in which case the Issuer shall provide Subscriber with prior written notice of such disclosure permitted under this
subclause (iii).
n. In connection with any sale, assignment, transfer or other disposition of the Acquired Securities by a Subscriber pursuant to Rule 144 or pursuant to any other exemption under the Securities Act such that the purchaser acquires freely
tradable shares and upon compliance by the Subscriber with the requirements of this Subscription Agreement, if requested by the Subscriber by notice to the Issuer, the Issuer shall request its transfer agent to remove any restrictive legends
related to the book entry account holding such shares and make a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends within two (2) business days of any such request therefor from such Subscriber,
provided that the Issuer has timely received from the Subscriber a completed representation letter in customary form and such other customary representations as may be reasonably required in accordance with applicable law in connection
therewith. The Issuer shall be responsible for the fees of its transfer agent, its legal counsel and all DTC fees associated with such legend removal.
o. This Subscription Agreement may not be amended, modified, supplemented or waived except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification, supplement or waiver is sought; provided that any rights (but not obligations) of a party under this Subscription Agreement may be waived, in whole or in part, by such party on its own behalf without the
prior consent of any other party.
p. The parties agree that irreparable damage would occur if any provision of this Subscription Agreement were not performed in accordance with the terms hereof, and accordingly, that the parties hereto shall be entitled to seek an injunction
or injunctions to prevent breaches of this Subscription Agreement or to enforce specifically the performance of the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 8.l, in addition to any other remedy to which any party is entitled at law or in equity.
[Signature pages follow.]
IN WITNESS WHEREOF, each of the Issuer and Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date first written above.
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ISSUER:
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TRUMP MEDIA & TECHNOLOGY GROUP CORP.
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By:
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Name:
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Title:
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SUBSCRIBER:
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Name of Subscriber:
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Signature of Subscriber:
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Name in which securities are to be registered (if different):
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Address:
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Telephone No :
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Facsimile No :
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Aggregate Number of Acquired Shares subscribed for:
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| Aggregate Number of Pre-Funded Warrants subscribed for: |
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| Aggregate Purchase Price: $ |
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You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in
the Closing Notice.
Name and Address of Beneficial Owner, if different from Subscriber:
Number of shares of Common Stock and other equity securities of the Issuer currently owned by Beneficial Owner prior to this Transaction:
Any descriptions for footnotes to be disclosed in the Registration Statement relating to beneficial ownership:
Signature Page to Subscription Agreement
EXHIBIT A
Summary of Risks
Certain factors may have a material adverse effect on the business, financial condition and results of operations of the Issuer and your proposed
investment in the Issuer. The risks and uncertainties described below are not the only ones that the Issuer faces. Additional risks that the Issuer are unaware of, or that the Issuer currently believes are not material, may also become important
factors that materially adversely affect the Issuer. If any of the risk factors discussed in the SEC Documents or any of the following risks actually occur, the business, financial condition, results of operation, and future prospects of the Issuer
could be adversely affected, the trading price of the Common Stock could decline, and you could lose all or part of your investment.
Risks Related to the Issuer’s Business and Bitcoin Strategy and Holdings
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The Issuer’s financial results and the market price of the Common Stock may be affected by the prices of Bitcoin.
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Investing in Bitcoin will expose the Issuer to certain risks associated with Bitcoin, such as price volatility, limited liquidity and trading volumes, relative anonymity, potential susceptibility
to market abuse and manipulation, theft, compliance and internal control failures at exchanges and other risks inherent in its electronic, virtual form and decentralized network.
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Issuer will have broad discretion in how it executes its Bitcoin strategy, including the timing of purchases and sale of Bitcoin and Bitcoin-related products. The Issuer may not execute its
strategy effectively, which could affect its results of operations and cause its stock price to decline.
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A significant decrease in the market value of the Issuer’s Bitcoin holdings could adversely affect its ability to satisfy its financial obligations under the Debt Financing and any subsequent debt
financings.
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Unrealized fair value gains on its Bitcoin holdings could cause the Issuer to become subject to the corporate alternative minimum tax under the Inflation Reduction Act of 2022.
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Bitcoin is a highly volatile asset, and fluctuations in the price of Bitcoin are likely to influence the Issuer’s financial results and the market price of the Common Stock.
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Bitcoin and other digital assets are novel assets, and are subject to significant legal, commercial, regulatory and technical uncertainty.
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The availability of spot exchange-traded products (“ETPs”) for Bitcoin and other digital assets may adversely affect the market price of its listed securities.
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The Issuer’s Bitcoin strategy will subject it to enhanced regulatory oversight.
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Bitcoin trading venues may experience greater fraud, security failures, or regulatory or operational problems than trading venues for more established asset classes.
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The concentration of Bitcoin holdings may enhance the risks inherent in the Issuer’s Bitcoin strategy.
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The Issuer’s Bitcoin holdings will be less liquid than existing cash and cash equivalents and may not be able to serve as a source of liquidity for it to the same extent as cash and cash
equivalents.
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If the Issuer or its third-party service providers experience a security breach or cyber-attack and unauthorized parties obtain access to its Bitcoin assets, the Issuer may lose some or all of its
Bitcoin assets and its financial condition and results of operations could be materially adversely affected.
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The Issuer will face risks relating to the custody of its Bitcoin, including the loss or destruction of private keys required to access its Bitcoin and cyberattacks or other data loss relating to
its Bitcoin.
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Regulatory changes reclassifying Bitcoin as a security could lead to the Issuer’s classification as an “investment company” under the ICA and could adversely affect the market price of Bitcoin and
the market price of the Issuer’s listed securities.
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The Issuer is not subject to legal and regulatory obligations that apply to investment companies such as mutual funds and exchange-traded funds, or to obligations applicable to investment advisers.
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The Issuer’s Bitcoin strategy exposes it to risk of non-performance by counterparties.
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Risks Related to the Transaction and the Convertible Notes
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The Issuer intends to use the net proceeds from this offering to purchase Bitcoin, the price of which has been, and will likely continue to be, highly volatile.
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The Issuer will have broad discretion in the use of the net proceeds from this offering and investors will not have the opportunity as of this process to assess whether the net proceeds are being
used in a manner of which you approve.
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The Issuer’s indebtedness and future indebtedness could affect its financial condition and prevent it from fulfilling its obligations under the Convertible Notes.
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The Issuer’s ability to generate sufficient cash flows to satisfy its debt obligations, or to refinance its indebtedness on commercially reasonable terms or at all, could materially and adversely
affect its financial position and results of operations and its ability to satisfy its obligations under the Convertible Notes.
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The Convertible Notes may contain terms which restrict the Issuer’s business operations and reduces its access to capital.
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A lowering or withdrawal of ratings assigned to the Issuer’s debt securities by rating agencies, if any, may increase the Issuer’s future borrowing costs and reduce its access to capital.
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The Convertible Notes will be secured by Bitcoin, which could become a significant portion of the assets of the Issuer. As a result of these security interests, such assets would be available to
satisfy claims of the Issuer’s general creditors or to holders of the Issuer’s equity securities if the Issuer were to become insolvent only to the extent the value of such assets exceeded the amount of the Issuer’s secured indebtedness and
other obligations. In addition, the existence of these security interests may adversely affect the Issuer’s financial flexibility.
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The Issuer may not have the ability to raise the funds necessary to repurchase the Convertible Notes or to repay the Convertible Notes in cash at their maturity, and the Issuer’s future debt may
contain limitations on its ability to pay cash upon conversion, redemption, or repurchase of the Convertible Notes.
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The conversion rate of the Convertible Notes may not be adjusted for all dilutive events that may occur.
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Conversion or redemption may adversely affect the return on the Convertible Notes.
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The accounting method for convertible debt securities that may be settled in cash, including the Convertible Notes, may have a material affect on the Issuer’s financial results.
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The market price of the Common Stock, which may fluctuate significantly, may directly affect the value of the Convertible Notes.
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Holders of the Convertible Notes will not be entitled to any rights with respect to the Common Stock, but will be subject to changes made with respect to the Common Stock.
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The Convertible Notes are convertible into the Common Stock and therefore holders of the Convertible Notes will be subject to all of the risks associated with holding Common Stock.
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EXHIBIT B
Form of Pre-Funded Warrant
(see attached)
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This Schedule must be completed by Subscriber and forms a part of the Subscription Agreement to which it is
attached. Capitalized terms used and not otherwise defined in this Schedule have the meanings given to them in the Subscription Agreement. Subscriber must check the applicable box in either Part A or Part B below and the applicable box in Part C below.
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QUALIFIED INSTITUTIONAL BUYER STATUS
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(Please check the applicable subparagraphs):
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Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).
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*** OR ***
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ACCREDITED INVESTOR STATUS
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The undersigned represents and warrants that the undersigned is an “accredited investor” (an “Accredited Investor”) as such term is defined in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as amended (the “Securities Act”), for one or more of the reasons specified below (please check all boxes that apply):
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(i) A natural person whose net worth, either individually or jointly with such person’s spouse or spousal equivalent, at the time of Subscriber’s purchase, exceeds $1,000,000;
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The term “net worth” means the excess of total assets over total liabilities (including personal and real
property, but excluding the estimated fair market value of Subscriber’s primary home). For the purposes of calculating joint net worth with the person’s spouse or spousal equivalent,
joint net worth can be the aggregate net worth of Subscriber and spouse or spousal equivalent; assets need not be held jointly to be included in the calculation. There is no requirement that securities be purchased jointly. A spousal equivalent
means a cohabitant occupying a relationship generally equivalent to a spouse.
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(ii) A natural person who had an individual income in excess of $200,000, or joint income with Subscriber’s spouse or spousal equivalent in excess of $300,000, in each of the
two most recent years and reasonably expects to reach the same income level in the current year;
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In determining individual “income,” Subscriber should add to Subscriber’s individual taxable adjusted gross
income (exclusive of any spousal or spousal equivalent income) any amounts attributable to tax exempt income received, losses claimed as a limited partner in any limited partnership, deductions claimed for depletion, contributions to an IRA or
Keogh retirement plan, alimony payments, and any amount by which income from long-term capital gains has been reduced in arriving at adjusted gross income.
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(iii) A director or executive officer of the Issuer;
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(iv) A natural person holding in good standing with one or more professional certifications or
designations or other credentials from an accredited educational institution that the U.S. Securities Exchange Commission (“SEC”) has designated as qualifying an individual for accredited investor status;
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The SEC has designated the General Securities Representative license (Series 7), the
Private Securities Offering Representative license (Series 82) and the Licensed Investment Adviser Representative (Series 65) as the initial certifications that qualify for accredited investor status.
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(v) A natural person who is a “knowledgeable employee” as defined in Rule 3c-5(a)(4) under the
Investment Company Act of 1940 (the “Investment Company Act”), of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in Section 3 of the Investment Company Act, but for
the exclusion provided by either Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act;
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(vi) A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities
Act, whether acting in its individual or fiduciary capacity;
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(vii) A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”);
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(viii) An investment adviser registered pursuant to Section 203 of the Investment Advisers Act
of 1940 (the “Investment Advisers Act”) or registered pursuant to the laws of a state, or an investment adviser relying on the exemption from registering with the SEC under Section 203(l) or (m) of the Investment Advisers Act;
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(ix) An insurance company as defined in Section 2(13) of the Exchange Act;
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(x) An investment company registered under the Investment Company Act or a business development company as defined in Section 2(a)(48) of that Act;
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(xi) A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
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(xii) A Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act;
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(xiii) A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state, or its political subdivisions for the benefit of
its employees, if such plan has total assets in excess of $5,000,000;
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(xiv) An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are accredited investors;
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(xv) A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
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(xvi) An organization described in Section 501(c)(3) of the Internal Revenue Code, or a corporation, business trust, partnership, or limited liability company, or any other
entity not formed for the specific purpose of acquiring the Acquired Securities, with total assets in excess of $5,000,000;
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(xvii) A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Acquired Securities, whose purchase is directed by a
sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Issuer;
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(xviii) A “family office” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act with assets under management in excess of $5,000,000 that is not formed for the
specific purpose of acquiring the securities offered and whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the
merits and risks of the prospective investment;
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(xix) A “family client” as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act, of a family office meeting the requirements set forth in (xviii) and whose
prospective investment in the issuer is directed by a person from a family office that is capable of evaluating the merits and risks of the prospective investment;
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(xx) A “qualified institutional buyer” as defined in Rule 144A under the Securities Act;
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(xxi) An entity, of a type not listed above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; and/or
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(xxii) An entity in which all of the equity owners qualify as an accredited investor
under any of the above subparagraphs.
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(xxiii) Subscriber does not qualify under any of the investor categories set forth in (i) through (xxi) above.
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*** AND ***
(Please check the applicable box)
SUBSCRIBER:
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.
SCHEDULE B
FORM OF ASSIGNMENT
This Subscription Assignment and Joinder Agreement (this “Assignment Agreement”), dated , 2025, is made and entered into by and between (“Subscriber”) and (“Assignee”) and acknowledged by Trump Media & Technology Group Corp. a Florida corporation (the “Issuer”).
WHEREAS,
the Issuer and Subscriber entered into that certain Subscription Agreement (the “Subscription Agreement”), dated , 2025, pursuant to which Subscriber agreed to subscribe for and purchase shares (the “Acquired Shares”) of the
Issuer’s common stock, par value $0.0001 per share (the “Common Stock”) and/or the pre-funded warrants to purchase shares of Common Stock (the “Pre-Funded Warrants” and, together with the Acquired Shares, the “Acquired
Securities”);
WHEREAS,
Subscriber and Assignee are affiliated investment funds; and
WHEREAS,
for administrative reasons, Subscriber desires to assign its rights to subscribe for and purchase of the Acquired Securities along with the rights and obligations set forth in the Subscription Agreement of such Acquired Securities (the “Assigned Securities”) to Assignee.
NOW, THEREFORE, pursuant to Section 8.d of the Subscription Agreement, and as further described in the table below, Subscriber hereby assigns its rights to subscribe for and purchase the
Assigned Securities to Assignee and Assignee hereby (i) accepts the rights to subscribe for and purchase the Assigned Securities and agrees to be bound by and subject to the terms and conditions of the Subscription Agreement, (ii) expressly makes
the representations and warranties in Section 4 of the Subscription Agreement with respect to the Assigned Securities and (iii) completed Schedule
A to the Subscription Agreement and attached it hereto. Notwithstanding the foregoing, this Assignment Agreement shall not relieve Subscriber of any of its obligations under the Subscription Agreement. Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the Subscription Agreement.
The following assignment by Subscriber to Assignee of its rights to subscribe for and purchase all or a portion of the Acquired
Securities have been made:
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Date of
Assignment
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Subscriber
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Assignee
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Number of
Acquired
Shares and/or Pre-Funded Warrants
Assigned
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Subscriber
Revised
Subscription
Amount
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Assignee
Subscription
Amount
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[Signature Page Follows]
IN WITNESS WHEREOF, this Subscription Assignment and Joinder Agreement has been executed by Subscriber and Assignee acknowledged by the Issuer by its duly authorized representative as of the date set forth above.
Acknowledgement by the Issuer:
TRUMP MEDIA & TECHNOLOGY GROUP CORP.
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Signature of Subscriber:
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By:
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Name:
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Title:
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SCHEDULE B-2